Communications Bill

Baroness Blackstone: My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.
	Moved, That the House do now again resolve itself into Committee.—(Baroness Blackstone.)

On Question, Motion agreed to.
	House in Committee accordingly.
	[The CHAIRMAN OF COMMITTEES in the Chair.]
	Clause 8 [Duty to publish and meet promptness standards]:

Baroness Buscombe: moved Amendment No. 35:
	Page 9, line 31, after "publish" insert ", and on an annual basis review,"

Baroness Buscombe: In moving Amendment No. 35, I shall speak also to Amendments Nos. 36 and 37. These amendments relate to Clause 8, which concerns the duty to publish and meet promptness standards. The clause requires that Ofcom sets out its policy, keeps the fulfilment of any objectives under review and publishes its success. The intention behind our amendments is to strengthen those requirements so that expectations of Ofcom are clear and there is no room for doubt.
	Ofcom is an immensely powerful regulator and accountability will be vital to its success, particularly to its relationship with those supplying or using communications services. Ofcom's reputation as a fair and effective regulator will depend on its ability to be responsive to developments in the industry. Ofcom's expectation that industry stakeholders provide information accurately and promptly is reciprocal. We have all heard examples of problems with regulators taking inordinate amounts of time to process information and reach decisions.
	I do not want to appear to be asking too much of Ofcom, hence the words in Amendment No. 36:
	"unless exceptional circumstances prevent this".
	I simply wish to see on the face of the Bill the requirement that Ofcom does its utmost to comply with its own standards rather than simply "have regard to" them. I beg to move.

Lord McNally: This clause contains some of the matters referred to by me and my colleagues. I see that the noble Lord, Lord Crickhowell, is also eager to enter the ranks. I merely draw the attention of the Committee to paragraph 85 of the Puttnam report which states:
	"Patricia Hewitt thought it was best for OFCOM to set its own promptness standards, after consultation. We do not believe this is an adequate discipline".
	It is that thought which is behind these amendments. We hope the Government will reconsider the matter.
	As the noble Baroness, Lady Buscombe, indicated, a great deal of Ofcom's credibility as a regulator will be in its capacity—the noble Lord, Lord Crickhowell, will later deal with these matters—and resources to match the massive advisory power of the various vested interests with which it will have to deal, and the speed with which it is able to deliver satisfactory judgments. Justice delayed is justice denied.
	Evidence was given to our committee from those with experience of other regulators of the skills of various vested interests to spin out inquiries. Because regulators were under-resourced that in the end became justice denied. We really want to see the noble Lord, Lord Currie, and his assembled regulators as a kind of Elliott Ness and the Untouchables; people who will strike fear into the hearts of wrongdoers in this sector. We believe that these amendments will give them the necessary discipline so to do.

Lord Crickhowell: Like the noble Lord, Lord McNally, I shall speak to Amendments Nos. 38, 103 and 144, for the reasons he gave. Like my noble friend Lady Buscombe, I believe that this is an important set of amendments. I agree with what she had to say. We in the joint committee thought it was important because of the evidence that we heard from many witnesses about the delays that had taken place before existing regulators. Some telecommunications operators considered that Oftel's decision making is still so slow that there is often no point in complaining to the regulators at all. We were not terribly impressed when we presented these arguments to David Edmonds in the joint committee on 27th May 2002. We asked him whether the provisions of Clause 6, as it then was, would affect his work at Oftel and at paragraph 84 he replied,
	"Promptness would not. I have tough targets already. We meet those targets. . . . I think the promptness clause is important underpinning but in terms of how I operate at the moment it would not make a difference".
	The committee felt that we should have a clause that did make a difference. It was for that reason that we made the recommendations to which the noble Lord, Lord McNally, referred.
	In choosing the words of this clause—we did not draft them out of the blue—we thought that the Government had given us a good precedent because they are based on almost identical words in the Competition Act 1998. It is true that the relevant clause in the Competition Act 1998 has never been introduced by the Government. Perhaps one of the questions we should again put to them, as it was put in Committee in another place, is "Why not?" Clearly, there is nothing wrong with the drafting and that clause stands as a guide.
	I shall make a couple of references in this context to the debate in Committee in another place on 12th December. The Minister, Dr Howells, in commenting not on this particular amendment but on one in the group dealing with the same point, made this remark about Ofcom:
	"Ofcom will understand far better than the Government or, indeed, hon. Members. It will be able to set its standards with an understanding of its resources, the urgency of each matter and the impact of not acting in a timely manner".—[Official Report, Commons Standing Committee E, 12/12/02; col. 143.]
	I pick up on the words "its resources" because they raise alarm bells with me. They carry us forward to a debate that is likely to take place later today on the financing of Ofcom and "its resources". The noble Lord, Lord McNally, said that I would be speaking on that. Sadly, I cannot be in the Chamber on that occasion. However, I have had discussions with the noble Lord, Lord Puttnam. He will be saying very much what I would say and probably with greater force and effect. But this is an important issue because if delay is caused by lack of resources we shall be in a considerable mess. So I point the way forward to that debate.
	The Minister in replying in another place said that it would be a great mistake to have time limits for Ofcom because unless analogous time limits were imposed on stakeholders, Ofcom would be in a mess. That is not a happy argument. Yes, of course major stakeholders do from time to time deliberately delay things, but that should not be the reason that lets Ofcom off the hook. Indeed, it is almost an invitation to stakeholders to delay things in the comfortable knowledge that if they do so Ofcom will say, "Well, it's not our fault. It's all those beastly stakeholders who aren't producing their evidence". So I think that is a poor argument.
	I finish, as indeed did honourable Members in another place, and Mr Lansley in particular, by referring to the part of the 1998 Act, asking why it has not been implemented and suggesting that it is entirely appropriate that it should apply to the Bill.

The Lord Bishop of Manchester: I intervene briefly to support Amendment No. 35. It is not a good idea for Ofcom to have an objective placed upon it that would be difficult to meet because of its imprecision. It does not meet all the requirements of being what these days is often referred to as "smart"—that is, while it is specific, measurable and perhaps even achievable, it is not realistically time-based. Ofcom is asked to set promptness standards. It is permitted to review them, but it is not told how often that review should take place. Even a minimum or maximum timescale is omitted.
	I suggest that the provision, as it stands, is open to abuse and that that is corrected by the amendment of the noble Baroness, Lady Buscombe.

Viscount Astor: I support Amendment No. 38 about undue delay, spoken to by my noble friend Lord Crickhowell, It is extremely important in the broadcasting industry—and indeed in any industry—that undue delay is not caused by the decisions of regulators. Sadly, in the past few years, because of the complexities and with different regulators being responsible for different parts of broadcasting, there has been undue delay in the industry. There has been undue delay in decisions by the ITC. However, by far the worst offender has been the OFT. It has taken an enormously long time to make some decisions. Indeed, in one case it took a year to decide that it was not able to make a decision. Surely, it should have been able to do so faster than that. I am sure it would not have taken so long in the days when the noble Lord, Lord Borrie, was in charge.
	It is important that the regulators have the power and the capability to come to quick decisions. There is nothing worse for the industry than not knowing where it is.

Lord Evans of Temple Guiting: My noble friend Lord Davies is in hospital having a small nose operation. I am sure all noble Lords will join with me in wishing him a speedy recovery.
	We have always said that we expect Ofcom to be a good regulator. We know that the industry will judge some of Ofcom's success, at least, on its ability to act promptly. We feel that to be tarred with the brush of other regulators which have not been successful is an unfair assertion for this brand new body with its very good chairman and staff.
	Clause 8 gives Ofcom a duty to publish and meet promptness standards. Read alongside Clause 9, which we added to the Bill in response to concerns expressed by the Joint Scrutiny Committee, our policy intention is clear— Ofcom will be set promptness standards for carrying out is functions and business and meeting them.
	I am more than aware that there are calls that the clause is not strong enough. Amendment No. 36 seeks to toughen it. The underlying assumption of the amendment is that the words in the Bill that Ofcom must "have regard" to the standards is a woolly concept with no legal effect. That is not the case. If Ofcom does not organise itself so as to be able to meet its promptness standards whenever possible, it exposes itself to legal proceedings. Amendment No. 36 would not give any greater legal force to the obligation which has already been placed on Ofcom.
	I turn to Amendment No. 38. It follows similar provisions in the Competition Act 1998 for dealing with notifications. Ofcom's promptness standards will cover all its functions and business related to those functions. Delays in missing some deadlines may not be very important but Amendment No. 38 would apply regardless. The equivalent of Amendment No. 38 is specific in the Competition Act. Its application here is not and for that reason, I am not at all comfortable in accepting it.
	I am not sure what additional benefit would be derived from Amendment No. 37, as subsection (7) of Clause 8 requires Ofcom to include in its annual report a summary of its compliance with the promptness standards. A dedicated report would be enormous and bureaucratic; the cost of its production would greatly outweigh its benefit.
	Amendment No. 35 would require Ofcom to review its promptness standards annually. We should not include such a review in the Bill. Let Ofcom consider how it will manage the setting and review of its standards. There is always the spur of the Secretary of State's power in Clause 9 to keep it up to scratch.
	Amendment No. 103, which would place a time limit on the process of market analysis, at first sight seems attractive, but it does not take into account all the steps involved in the process, which would have to be telescoped into those four months. I know that the amendment would start the time limit running only after the markets had been identified, but it would still require Ofcom to shoehorn into four months the analysis of the markets identified and the making of any determination.
	A significant slice of the timeline is devoted to collecting information from stakeholders, responding and consulting. Consultation by Oftel is for 10 weeks—a period requested by stakeholders after Oftel had originally proposed six weeks. Moreover, Clause 78 requires certain proposals to be sent to the European Commission. In specific circumstances, the European Commission can within one month demand an extra two months to review the proposal. So four months could not possibly be made the maximum time in all cases.
	Finally, I turn to Amendment No. 144. Of course we recognise the concerns raised about the risks of delay in the resolution of appeals, which may be systematically used by powerful interests to obstruct decisions that are not to their liking. We agree that the appeal process should be as speedy as is reconcilable with the interests of justice. However, we explained in our reply to the Joint Committee's report that it would be impractical to set statutory time limits for the consideration of issues that may be raised by the parties in proceedings before a court of law, because the court must ultimately have sufficient flexibility to give consideration to issues raised by any of the parties at any stage.
	It is still our view that that consideration rules out binding deadlines. The amendment does not seem to dissent from that view, because it does not in reality impose binding deadlines. It provides significant flexibility to depart from the four-month deadline, which thus becomes something more like a target.
	The tribunal has a good record on prompt decision making in the discharge of its existing responsibilities, and I am confident that it will be equally effective in respect of the new responsibilities proposed by the Bill. The amendment would not have any material effect in speeding those processes. Having heard my remarks on the amendments, I hope that they will not be pressed.

Lord Puttnam: Perhaps I may ask my noble friend one question that may help him when we reach Report. Much of what he said was perfectly reasonable until he used the terrible phrase, "wherever possible". In my experience of legislation, "wherever possible" becomes a catch-all get-out and effectively makes everything meaningless. Perhaps the Government can return on Report with an illustration of what they mean by "wherever possible". When does "wherever possible" become a legitimate delay, and when does it become an escape clause?

Lord Evans of Temple Guiting: I am grateful to my noble friend for that intervention. We will hold discussions with him on the matter before Report.

Lord Crickhowell: I listened with considerable interest to the Minister's reply. Much of what he said reinforced the arguments advanced from my Front Bench and others who spoke in the debate. I was again worried by the repeated reference to the time that would be taken by stakeholders. We shall want to consider that carefully before Report, because we must not allow Ofcom to be dictated to by the actions of stakeholders. We must try to find a way around that and return to the matter on Report.
	I was also interested in the Minister's argument about Amendment No. 38. Basically, he said, "Well, it should apply only to part of the Bill; it is a question of the extent of the coverage". I thought that that was a Minister saying, "Well, this is not actually a bad provision, but it needs a little amendment and modification so that it applies only to the relevant parts of the Bill". Again, we must consider that before Report.
	We have not reached the end of this discussion, although I am most grateful to the Minister for elaborating on the arguments advanced in another place. He has given us enough material to see whether we can reach a more workable solution.

Baroness Buscombe: I thank the Minister for his response and noble Lords, including the right reverend Prelate the Bishop of Manchester, for their support. I begin with what the right reverend Prelate said about Amendment No. 35. Obviously, we do not want to put Ofcom in an impossible position by giving it unrealistic timescales. On the other hand, as noble Lords have pointed out, there is a history here of regulators' seeming inability to provide answers within a reasonable period. The phrase, "wherever possible", alludes to that problem.
	The Minister said that Ofcom would be open to legal proceedings if it did not meet the time-frame but, using the example cited by my noble friend Lord Astor, the Office of Fair Trading has consistently failed in recent years to provide answers within a sensible time-frame. Legal proceedings are possible in that case, but they have never been able to stick.
	Looking at the matter in as practical a way as possible, there is a history of problems with other regulators. The Minister said at the outset that to suggest that there might be a problem with Ofcom and to compare it with other regulators was unfair. That is the very reason for the amendments: we want to avoid Ofcom being, as the Minister put it, tarred with that brush. We want Ofcom to be a successful regulator, able to respond to different difficult situations with due promptness and as efficiently as possible.
	This whole debate impinges directly on later debates, as my noble friend Lord Crickhowell said. The question of the ability to produce reports within a reasonable time frame will impinge directly on resources, which is a subject to which we shall return, I hope, later today.
	I am somewhat disappointed by the Minister's response. All the amendments, including those in the names of my noble friend Lord Crickhowell and the noble Lords, Lord Puttnam, Lord McNally and Lord Hussey, are entirely reasonable. They would not put Ofcom in a difficult position; they would help to protect it from suggestions that it was spinning things out, creating a situation in which, as the noble Lord, Lord McNally, said, justice delayed is justice denied. We will go away and reconsider an amendment to table on Report that meets our concerns. For the time being, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	[Amendments Nos. 36 and 37 not moved.]
	On Question, Whether Clause 8 shall stand part of the Bill?

Lord Peyton of Yeovil: I hope the Government will dismiss any lurking suspicion that the Motion to oppose the clause is in any way hostile or that it seeks to exacerbate the real difficulties now being faced by the Government, even though those are, to a certain extent, of their own making.
	It is with concern, even dismay, that I point out that here we are, on the third day in Committee, having not yet disposed of Clause 8. Some 395 clauses and 18 schedules are to come. This could develop into an almost endless process which would be highly embarrassing to the Government and damaging to an industry which cannot tolerate protracted uncertainty. In my view, it will make your Lordships' House appear just plain silly. We shall look rather like mice in a cage, scrabbling about on the floor, not knowing where the door is or how to open it.
	Let me make it clear in passing that I have nothing against Clause 8. It is simply the last of five or six clauses setting out the duties of Ofcom. I am happy to admit that the Motion to oppose could have applied equally to any one of those clauses. However, this appears to be the appropriate moment to consider the matter.
	The first major point I want to make is that Bills of such huge dimensions are very nasty and unattractive objects. If Bills carry on growing at this rate, some of the weaker among us will need to seek the assistance of a caddie to carry the wretched things about. I hope that the Government will pay attention to that remark. Bills are becoming collections of suggestions that anyone may care to make. As a result they are far too heavy a meal, and clarity simply goes by the board.
	I remind noble Lords of paragraph 26 of the report of the Select Committee:
	"The draft Bill as it stands does not provide the clarity of duties and objectives that the Government itself has sought".
	I concede that improvements have been made, but I do not think they go anything like far enough. In a Bill of this length a good deal of confusion and uncertainty, along with lack of clarity, is bound to arise. I hope that the Government will record and take seriously the warning that if they pack a mass of detail into their Bills, then that mass will certainly attract suggestions as to how it could be improved. The discussion of suggested improvements is likely to take up a great deal of time.
	It is of the utmost importance that Ofcom and its chairman should have sight of the wood and not become lost under the trees in a labyrinth constructed by those who believe that they are being helpful. I put in a plea to noble friends on my own Front Bench: as the Bill progresses, I hope that they will realise that the scene is changing from what it was when the Bill was handled in another place and that they will not become hog-tied to foolish advice received from party sources down the corridor. Indeed, that applies to both Front Benches.
	An overload of duties, functions and guidance will be a major handicap to the noble Lord, Lord Currie. What he is going to need is the freedom to perform broad duties laid out in a way appropriate to Acts of Parliament. What he deserves—he is neither a fool nor a rogue—is to be trusted. I recognise that modern governments find it extremely difficult to trust almost anyone. They put people in important positions but will not give them the discretion and the freedom they need; they harass them at all stages. I see my friend the noble Lord, Lord Marsh, in his place on the Cross Benches, with whom I have dealt in the past on transport issues. I learned then that if Ministers do not trust those whom they appoint, the most ghastly muddle ensues. We are pretty good at creating the scenery in which such muddles can arise.
	The noble Lord, Lord Currie, spoke clearly at Second Reading:
	"I hope that your Lordships will avoid the temptation to add many more specifics on one aspect of the Bill or another. Ofcom needs some freedom of manoeuvre to carry out its duties".
	He added:
	"It is tempting, to shift metaphor, to see Ofcom as a Christmas tree on which to hang one's favourite decoration".
	It had not occurred to me to compare amendments tabled in either House with Christmas decorations, thus suggesting that they are in any way decorative. Most are usually anything but, and they are not intended to be; they are usually rather ugly and not well framed.
	The noble Lord's third point was one of great importance:
	"We have a real opportunity to look afresh at the way we do regulation".—[Official Report, 25/3/03; cols. 683–4.]
	Anyone ready and able to look again at the way we do regulation must be someone we would cheer to the echo and welcome with the utmost enthusiasm. When considering the morass of regulation that is shunted through Parliament day after day and week after week, no one could suggest that we should be proud of it. I wish the noble Lord, Lord Currie, well, in particular as regards his fulfilment of that promise.
	The last of the quotations I wish to cite from the noble Lord is one that I believe to be singularly important. As Bills drag their weary way through Parliament, the point made by the noble Lord, at col. 684, is one that we rather ignore:
	"But Ofcom has been long in the making and this has meant a lot of uncertainty for many in the communications sector as well as for the staff of the . . . regulatory bodies".
	I believe those arguments to be unanswerable. I hope that they do much more than just puzzle the Government. The Government should pause, reflect, and see what can be done to meet them. Otherwise, the uncertainty and muddle we see already will become intolerable.
	I hope that I have the Minister's attention because I have not finished yet. It is our habit in this country to set up organisations that are eminently satisfactory to those who conceived them, but nightmares to those who must operate them. I hope that the Government will take the opportunity in this short debate to say that they will look at the situation to see whether they can modify the Bill to accelerate its progress considerably; otherwise, the uncertainty will be very damaging, not least to themselves.

Lord McNally: A Committee stage is always a pilgrim's progress. The noble Lord, Lord Peyton, has invited us to pause at a friendly inn to refresh ourselves. That is a legitimate thing to do on a long journey, but I say to the Ministers that we should press on. It is a long, complicated process, but the Bill is very, very important. From the beginning, I have felt that it is as important as the 1920s legislation that set up the BBC, giving us, for the 20th century, the magnificent legacy of culture, democracy and communications that the BBC underpinned. I welcome our approach to this Bill. This Parliament is preparing a similar legacy for the 21st century. From the beginning, my approach has been to get right the balance between competition and the concerns of the citizen and the community.
	I appreciate and welcome the thoroughness with which the Government have approached the task. Sitting on the committee chaired by the noble Lord, Lord Puttnam, was one of the most rewarding exercises of my political life. Pre-legislative scrutiny has been immeasurably advantageous in trying to get the Bill right. It has allowed the expertise outside Parliament and Whitehall to have an input. My approach and that of the committee, which I hope I have carried on to these Benches, is a consistent attempt to make a good Bill better, not to wreck it.
	I was surprised that Ray Snoddy, in The Times last Saturday, suggested that procedure in this House might even cause the Bill to be withdrawn. That is absolute rubbish. So long as Ministers keep their nerve and this House keeps to its task, there is no reason why we should not complete the Committee stage in the time allotted. As the Minister knows, I have indicated the full co-operation of these Benches in ensuring that we progress. I see the noble Lord, Lord Dubs, muttering from a sedentary position. It is important to get it right at this stage, which is why I welcome the pit stop proposed by the noble Lord, Lord Peyton.
	Let us have an end to ministerial and Whips' briefings that we are in the business of wrecking the Bill. We are trying to improve it to get the balance right. If we get the balance wrong, the error will be there for many years to come. I appreciate the concerns about uncertainty. But this is not a private debate for the communications industry; it is about our culture and democracy. There is an onus on this House to get the balance right. Be of good heart, Ministers; keep progressing, and we will help you along the way.

Lord Thomson of Monifieth: I fully agree with the noble Lord about the importance of the Bill. I should tell him, since the BBC was created a long time before he was born, that no Bill was passed in either House of Parliament at that time. It was created by an Order in Council. That sustains some of the arguments put by the noble Lord, Lord Peyton.

Lord McNally: I am grateful to my noble friend for that stab in the back. I am not sure that that trust exists these days. But the point still remains: we are setting legislation that will exist for a very long time. We should not lose our nerve in trying to get it right.

Lord Evans of Temple Guiting: In response to the noble Lord, Lord McNally, I sit in the Whips' Office, and I know all the Ministers involved with this Bill. I have never heard one of them say that this House is trying to wreck the Bill. There are time frustrations, to which we must face up.
	I am most grateful to the noble Lord, Lord Peyton, for his Motion to oppose. I am particularly grateful to him for warning me about it and sharing some of the substance of his points. I agree with much of what he said. But it might be important to tell noble Lords of our progress with this Bill. We have now had two days in Committee, during which time we have discussed 21 groups of amendments at an average of 33 minutes per group. There are 102 further groups tabled so far. Should we take anything like the length of time to debate the remaining groups that are listed so far, we would need a further 56 hours—just over nine more days in Committee, to say nothing of Report and Third Reading. I am sure that the Committee understands that no Bill can be given such a large proportion of a Session's legislative time. Having said that, we are very grateful to all Committee Members who have grouped amendments to reduce the length of the debate.
	The thrust of the point made by the noble Lord, Lord Peyton, is that there is over-regulation. In the short time that I have been in this House, it is a theme about which I have heard the noble Lord talk often. I agree with him. However, we should return to the policy document issued when the draft Bill was published. It states:
	"Unnecessary regulations need to be removed wherever possible. By eliminating undue burdens on business we can drive innovation, increase investment, raise employment and bring better services to consumers".
	The overall thrust of the Government's proposals in the draft Bill is, in their own assessment, deregulatory.
	In some amendments, including those to which I spoke earlier, Committee Members, for all the good reasons raised by the noble Lord, Lord McNally, may be proposing to put further restrictions on Ofcom. At paragraph 83 the report of the Joint Committee on the Draft Communications Bill stated:
	"Clause 6 seeks to give effect to this policy commitment, which is reflected in the title of the Clause—'Duty to publish and meet promptness standards'. The duty to publish promptness standards is evident in the provisions of the Clause; the duty to meet them is not so evident".
	It is a personal thing, but, like the noble Lord, Lord Peyton of Yeovil, I believe strongly in trust rather than in mindless accountability. We have a new body that has a very good chairman and is likely to have a very good board, chief executive and infrastructure. We must have confidence that they will do the things we want them to do. We must have confidence that they will interpret not only the fact of the Bill but the spirit of the Bill. That is how I would like to see things happen.

Lord McNally: I understand the philosophy, but special pleading about the shortness of time seems a bit rum when, next week, we are going on another four days' holiday, 17 working days after we finished the Easter break. If we want to get business through the House, we cannot casually take days off when there is no reason to do so.

Viscount Astor: Is the noble Lord aware that it was his party and the noble and learned Lord the Leader of the House who changed the hours the House sits? If we had gone back to the previous arrangements, there would have been plenty of time, and we could have had as many hours as the noble Lord suggests.

Lord Tordoff: It was not the Opposition Front Bench that changed the hours; it was the House as a whole, on the recommendation of the Procedure Committee.

Lord Evans of Temple Guiting: What a can of worms I have opened. I was responding to the point made by the noble Lord, Lord Peyton of Yeovil. I do not wish to get drawn into a debate about a "casual" holiday next week, but I gather that the House has always taken a holiday at Whitsun, so it is not as if we have suddenly decided to have a couple of days off.
	I had more or less finished what I wished to say. I am grateful to the noble Lord, Lord Peyton of Yeovil. I agree with much of what he said but, when he argues that the Bill is in danger of being over-regulatory, I disagree.

Lord Peyton of Yeovil: I was struck with grief and sorrow to see that the noble Lord, Lord McNally, could not go just an inch or so down the road of agreeing with me that long Bills are not particularly to be welcomed and that length is not a virtue in a Bill. I was pleased when the noble Lord, Lord Thomson of Monifieth, administered that well deserved stab in the back.
	I am sorry that the noble Lord, Lord McNally, was absolutely unmoved by my references—friendly and constructive, I thought—to the noble Lord, Lord Currie of Marylebone, who will carry the burden of all that we do. My plea was that we should be careful before we tie the noble Lord down and increase the load that he must carry.
	The Minister was gracious in what he said. I am glad that he acknowledges that there is no essence of a party manoeuvre here. However, he quoted a policy document. I must say that he was looking at something that is very unreliable. Policy documents are full of acceptable things, often quite inane. They are put out as a sort of decoration, and people have no intention of taking any notice of them at a later stage. I have great respect and regard for the Minister. I hope that he will not be led astray into thinking that he can rely on policy documents as a source of wisdom and general righteousness. They are nothing of the kind.
	I am glad that I opposed the Question. I hope that it will not be the end of the matter. I hope that the Government will give serious thought to what they might do by way of modifying the Bill and leaving out some things that are contentious. That would, with the minimum of further delay, bring about the arrival on the scene of Ofcom.

Clause 8 agreed to.
	[Amendment No. 38 not moved.]
	Clause 9 agreed to.

Lord Ashley of Stoke: moved Amendment No. 39:
	After Clause 9, insert the following new clause—
	"DUTY TO PROMOTE INCLUSIVE DESIGN AND DISABLED ACCESS
	(1) It shall be the duty of OFCOM to take such steps, and to enter into such arrangements, as appear to them calculated—
	(a) to bring about a better awareness and understanding of inclusive design principles, techniques and standards among—
	(i) the designers and manufacturers of apparatus designed or adapted for use in connection with electronic communications services or associated facilities; and
	(ii) the providers of electronic communications services;
	(b) to encourage the designers, manufacturers and service providers mentioned in paragraph (a) to adopt inclusive design principles and techniques in the development of new apparatus, facilities and services; and
	(c) to bring about a better public awareness and understanding of inclusive design in relation to electronic communications apparatus, facilities and services.
	(2) It shall be the duty of OFCOM to encourage electronic communications network operators to co-operate with—
	(a) the manufacturers of apparatus designed or adapted for use in connection with electronic communications services or associated facilities; and
	(b) the manufacturers of assistive devices for disabled people, in order to facilitate access by disabled users to electronic communications services.
	(3) References in this section to "inclusive design" are references to designs which result in apparatus and services which are accessible to, and usable by, as many people as reasonably possible, and to the greatest extent possible, without the need for special adaptation or specialised design.
	(4) References in this section to "electronic communications services" includes web sites."

Lord Ashley of Stoke: "Inclusive design" is a formal term for a simple but important concept. It means the designing of products and services so as deliberately to make them available or accessible to as many different users as possible. In that context it is aimed at enabling disabled people to use communications equipment and services immediately and without adaptation.
	Without inclusive design, disabled people are excluded and frustrated. In addition, they face extra costs. Video recorders are a good example: had they been inclusively designed originally, they would automatically have recorded sub-titles, and deaf people would have been spared years of frustration and extra cost. It did not happen. Deaf people have been deprived of video recordings for years because of the failure to have inclusive design.
	Inclusive design is an effective, cost-efficient way of providing for disabled people. If any required features are included in the original design, rather than added on later, the cost is often minimal. A PhoneAbility study, carried out in 1999, found that 20 out of 44 features required to make telephones more accessible could have been added initially at no, or minimal, cost.
	Design with disabled use in mind often benefits other people, not just disabled people. For example, an Easy TV study for the Independent Television Commission, the Consumers' Association and the Design Council found that all users had problems with digital equipment—I know I do. They wanted fewer buttons, clearer labelling on remote controls, quicker responses to pressing the buttons and simpler user manuals. All those features are important to people with impaired eyesight and other disabilities.
	Technological developments are racing ahead, leaving many people behind. Almost daily—certainly, almost weekly—new products emerge aimed at confident, fit, lively young people who thrive on complexity and sophistication. The rest of us struggle and ask our grandchildren for assistance. I am always begging my grandchildren to explain things, and they do it confidently and with no problems. Inclusive design would mitigate and alleviate many such difficulties. It is wrong in principle and unnecessary in practice to have a divide between the young, quick and nimble and those of us who are a bit slower, possibly less agile or, perhaps, with a disability.
	I conclude by making clear to my noble friend the Minister that the amendment would not allow or encourage Ofcom to regulate or set standards in the field. That would be inappropriate. Instead, the amendment would give Ofcom a responsibility to promote inclusive design so as to combat exclusion and make equipment more accessible and usable. It would also ensure that Ofcom encouraged co-operation between network operators and the manufacturers of relevant equipment.
	I hope that my noble friend will give a sympathetic response. The issue is of enormous importance to many disabled people, quite apart from the general benefits that would accrue from pursuing the policy. I beg to move.

Lord Addington: The noble Lord has very ably introduced this amendment, which I think is one of the potentially most useful amendments for the disabled. As the noble Lord said, it will also be helpful for those people who are dealing with a barrage of new technology. My daughter is now eight months old and has realised that the video recorder will look wonderful with toast inside it. I am sure that within a year she will be programming it herself. But if we can make it so that these devices are easier to use, we shall not be dependent upon the current generation of crawlers to show us how to use the next generation of machines.
	The idea that we promote usability in a body such as Ofcom is very sensible. Computers, and anything with computing design, generally have spare capacity to take on board many new projects and, thus, make use of existing capacity. This amendment also ties in with the Disability Discrimination Act, which refers to the concept of reasonableness when making some kind of allowance. Such a duty is probably hinted at in existing law. We are trying to build on what we have and to do as much as we reasonably can to ensure that the new technology is usable by everyone. Surely that is at least hinted at by the amendment.
	I suggest that if the amendment is not acceptable, the Government should look long and hard at ensuring that capacity to promote inclusive design is somewhere within the legal framework. That would head off many problems and would probably save money; for example, if disabled people are to have access to multi-media, expensive adaptations would not have to be made. The intentions of the amendment are good, but if this is not the right form I should be very interested to hear what is.

Baroness Buscombe: I, too, support the amendment, having added my name to those of the noble Lords, Lord Ashley of Stoke and Lord Addington and the noble Baroness, Lady Darcy de Knayth. While we welcome Clause 3(3)(i), which states that Ofcom must have regard to,
	"the needs of persons with disabilities, of the elderly and of those on low incomes",
	we question whether the clause goes far enough to specify some of the key aspects of need pertinent to broadcasting and telecommunications if those with disabilities, the elderly and those on low incomes are to access and enjoy the benefits of this fast-moving sector.
	The amendment, as we have heard so eloquently from the noble Lord, Lord Ashley of Stoke, deals specifically with design and usability of telecoms and broadcasting equipment. As other noble Lords have said, in practice we are all keen on more ease of application of apparatus. I must admit that I often find it extremely difficult to utilise properly the television zapper. I now have a fantastic and amazing new telephone which has many capabilities, but I find myself carrying around a rather weighty book of instructions. For some of us, there is no question that the more advanced the technology, the more complicated it becomes.
	I think that, to a large extent, it is generational. It is always my children teaching me how to use this equipment. That said, there is no doubt a need to develop a much greater awareness in terms of usability and the understanding of inclusive design in relation to electronic communications, apparatus, facilities and services.
	While this is already happening to some extent, we believe that it would be very helpful to underpin the objective by placing this amendment on the face of the Bill. Therefore, we strongly support the amendment. It may be said that it is not profitable to develop equipment designed specifically for certain disabilities. My response is that it would be extremely profitable. Indeed, it is profitable, as is often shown by equipment designed for mainstream use which everyone can access, use efficiently and enjoy.

Baroness Howe of Idlicote: I, too, admit to being part of the club which finds the different techniques and the complications of accessing the parts of the media which one wants to access particularly irritating. I certainly support the proposed new clause, which I shall illustrate by reference to the needs of those who are hard of hearing and deaf. These people are the largest disabled group in the UK. In order for them to enjoy the kind of media literacy to be debated in the next clause, it is essential that Ofcom is responsible for ensuring that access is both universal and of a high quality as well as easy. As we have heard, the costs are fairly small. I believe subtitling costs in the region of £400 per hour and is decreasing.
	Sadly, hearing loss increases with age. Fifty per cent of people over 60 have a hearing loss. Yet there is considerable evidence that many who would benefit, including the over-60s, do not know how to access the service. Worryingly, use of subtitles does not increase with age. That is almost certainly due to lack of awareness even when such a service is available. Another group of under-users are the 50,000 people whose first language is British sign language. Of course, many of those people do not have the literary skills to follow subtitles.
	For Ofcom to be given a specific duty to ensure that broadcasters promote this kind of service and, particularly, how to use it—information that is currently almost non-existent—would certainly be consistent with the objectives of the Bill to promote media literacy and would make a considerable difference to people's lives. Therefore, I hope that this will be taken into account; that this clause will be accepted in principle, whether it can be accepted in totality or not; and that this group of people, who have an added need for access to the type of information that the rest of us perhaps take for granted, are properly prioritised.

The Lord Bishop of Manchester: I agree that this is a significant amendment. The interventions made by the noble Lord, Lord Ashley, on these matters are always pertinent. What he said today goes to the heart of the issues about disabled access to broadcasting and communication technology. I do not wish to add any detail to what has been said but I want to record the support from these Benches for the valuable points that have been made. In addition to the points made by the noble Lord, Lord Ashley, the noble Baroness, Lady Buscombe, spoke about wishing to explore further important issues about disabled access and inclusive design. The noble Baroness, Lady Howe, spoke on behalf of the deaf. These are all issues which I am very aware of in my own ministry among "deaf" churches over the past 10 years. I support the amendment from these Benches.

Lord Wade of Chorlton: I support the amendment, but perhaps I may draw the attention of the Minister to the recent report of your Lordships' Science and Technology Select Committee into the future of microprocessing, which identifies the technology that now exists for the development of what we call in our report, "ambient computing". It makes possible all that has been suggested should be done to be done very quickly if there is encouragement for the development of the technology. We also draw attention to the importance of the Government as a customer for these new developments. I recommend that the Minister has a glance at our report.

Lord McIntosh of Haringey: My apologies for any delay. My noble friend Lord Ashley is without his Palantype operator. I gave him a copy of my closing speech and discovered that my remaining copy was incomplete. I am glad to have the complete copy returned.

Lord McNally: If the Minister were to do that for the whole of the Committee we might make the progress we desire.

Lord McIntosh of Haringey: I remember occasions when we were in Opposition when David Blunkett used to receive Braille discs. The discs enabled us to receive government statements rather earlier than we otherwise would have. They were very helpful.
	I was somewhat dismissive of earlier amendments relating to disabilities but I am certainly not dismissive of this one. It makes a real contribution to the debate and I am grateful to my noble friend Lord Ashley for bringing it forward.
	There are two elements to the proposed new clause. First, it seeks to impose a duty in relation to inclusive design; secondly, it seeks to impose a duty to encourage co-operation between network operators and relevant manufacturers to facilitate access by disabled users to electronic communications services.
	As to the first element, we are sympathetic to the aim of encouraging designers and manufacturers to consider the needs and preferences of all potential customers and to consider the advantages of designing equipment so that it is suitable for use by the widest practical range of users. But, as my noble friend Lord Ashley said, this should be pursued through encouragement, not regulation.
	Design is an important aspect of innovation. We are strongly in favour of promoting innovation in electronic communications in all other fields—I shall draw the attention of officials to the point made by the noble Lord, Lord Wade of Chorlton—but to attempt to regulate creative and inventive processes such as design would be counter-productive and damaging to the growth of the sector.
	The Government are very active in the field of inclusive design and believe that they are better placed to act than a national regulator. We have previously supported the work of the advisory committee, TCAM, which has, within the framework of the Radio and Telecommunications Terminal Equipment Directive, been advising the European Commission on how to improve access for disabled users.
	We shall pursue these issues positively through the work of the new committee, INCOM, which the Commission has established to look at these issues within the framework of the four directives implemented by Part 2 of the Bill. As the title of the new committee refers specifically to "inclusive communications", it is clear that the encouragement of inclusive design is on its agenda.
	We are not sure that Ofcom is particularly well placed to take this work forward or that we should give it a particular duty in this area. Inclusive design is a matter for manufacturers, not regulation, and the role of encouraging inclusive design is best performed by government, which has broader relationships with manufacturers and other people concerned. So, although we are not able to accept the first part of the amendment as it stands, we shall look at the contribution that Ofcom can make on inclusive design and consider whether there should be, with due respect to the noble Lord, Lord Peyton, some addition to Ofcom's duties consistent with the rest of its responsibilities.
	The second part of the amendment is partly based on Recital 8 of the framework directive. We are confident that, because of the provision in Clause 3(3)(i), to which I have already referred, it is unnecessary to have regard to the needs of disabled persons. In so far as Ofcom can take practical steps to encourage co-operation between network operators and manufacturers as envisaged by the recital, we are in no doubt that the general duty we have provided will lead it to do so.
	There are one or two other detailed difficulties in the amendment but I do not need to go into them. I can sum up by saying that, although we cannot accept the amendment as it stands, we shall look again at the question of inclusive design in the light of the points that have been made today.

Lord Ashley of Stoke: I am grateful to my noble friend for his original and imaginative consideration of the special difficulties we face. I thank all noble Lords who have spoken in the debate. As the Minister will have heard, they are all supportive of the amendment and have underlined the importance of inclusive design. I am glad that my noble friend has offered to look again at the issue. He has outlined the Government's difficulties—which I appreciate—but I am sure that we can establish some kind of modus vivendi and move forward on this very important principle which will help millions of disabled people. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	Clause 10 [Duty to promote media literacy]:

Baroness Buscombe: moved Amendment No. 40:
	Page 11, line 15, leave out paragraph (e).

Baroness Buscombe: This is a probing amendment. We believe that Clause 10(1)(e) is ambiguous. We entirely support media literacy—we have supported it throughout the passage of the Bill, both in another place and in your Lordships' House—but there is one issue on which we seek further clarification.
	Media literacy should, by definition, refer only to the promotion of public understanding of the workings of media services and how best to access them—for example, an understanding of how to use the Internet and parental control options. However, Clause 10(1)(e) states that it shall be the duty of Ofcom,
	"to encourage the development and use of technologies and systems for regulating access",
	to electronic media content, and for,
	"facilitating control over what material is received".
	It is those words that we are concerned about.
	It is not clear what kind of "encouragement" Ofcom may undertake in this area or whether the provision would allow it to use its considerable powers to "pick winners" in terms of the technologies or systems used in the market place; or, indeed, whether it will allow Ofcom to impose on electronic communications networks or services, through its broadcasting licences, requirements that may adversely effect them.
	For example, under Clause 10(1)(e), Ofcom's duty will require it to encourage the use of technologies and systems for regulating access to content that it determines are both,
	"effective and easy to use".
	But Ofcom's judgment of the effectiveness or ease of use of particular technologies and systems may differ from that of others or be superseded by fast-moving developments in technologies and services; or its preferred standards or systems may be incompatible with those already in use and require changes that damage the investments and operations of market players.
	The intention behind the provision is no doubt laudable—who would not wish to support effective and easy-to-use technologies and systems for facilitating access and control over content in the digital world?—but it is another matter if the regulating body can substitute its judgment over that of the market in this area. Indeed, the regulator would not need to impose particular requirements on operators or licensees to tilt the playing field if, for instance, Ofcom chose to "encourage" the development or use of particular technologies or systems through its own research and development or funding initiatives in ways that affected the investments and operations of others and worked against rather than with the grain of the market place.
	I should be grateful if the Minister would confirm that it is not the Government's intention that Ofcom should be able to promote particular technologies over others, or to impose requirements that could have adverse effects such as those I have mentioned in pursuit of its media literacy objectives. It would also be helpful to know why, if the existing provision does not indeed allow such intervention, Clause 10(1)(e) should not be deleted from the Bill. I beg to move.

Lord Avebury: There is a great deal of force in what the noble Baroness said. We believe that there is a distinction between paragraph (e) and the remainder of the clause. In that paragraph Ofcom is given an active role in encouraging the development and use of technologies and systems as opposed to regulating the activities of other people doing those things. Paragraphs (a) to (d) all give Ofcom the duty to bring about, or to encourage others to bring about, various aspects of public awareness, but paragraph (e) is directly concerned not with public awareness but with the actual means of access and of facilitating control.
	The Explanatory Notes state that these could include Internet filtering systems, rating systems by which programmes and videos are given a classification that indicates the nature of their content, and other technical devices for access, such as PIN-based systems. The notes envisage a role for Ofcom in the promotion of these systems and in the development of related educational materials. There are already Internet filtering systems and I doubt whether it is sensible for Ofcom to get involved in the global marketplace, as it would have to be to influence that technology. For Ofcom to favour a particular system to pick winners, as the noble Baroness pointed out, would be to risk shutting off the UK from the developments that might take place in the rest of the world, particularly in the US, and that would be extremely foolish. Technical devices for access and PIN-based systems in particular are matters for the industry rather than the regulator. Going down that route might lead to the point of saying that even things such as modems, modem drivers, routers, 802.11 add-on cards and anything else which makes it easier for consumers to gain access to web-based material should be susceptible to the encouragement of the regulator under this heading.
	Rating systems are another matter, because they are not likely to be developed or agreed voluntarily by communications providers. If the subsection were more tightly drawn to cover this problem alone, it could be useful, but we think that as it stands it is far too broad.

Baroness Howe of Idlicote: I support the amendment. Clause 10 is to be welcomed; it imposes a fairly wide duty on Ofcom, but this amendment would make it wider. On the actual scope of duty to promote media literacy, how far does it extend, or is it intended to extend, to children? I assume it is intended to extend to parents, as the noble Baroness, Lady Buscombe, said.
	It is interesting to note that little, if any, attention is given to the particular needs of children in this or, indeed, any part of the Bill. I have been able to see only one reference in the standards code covered in Clause 312(2), and that is to those under 18, so it is important to have an answer. Certainly, Ofcom will need to encourage, promote and consolidate best practice because it is clear that the multiplicity of such guidelines already developed by government departments, ISPs or lobby agencies have not yet reached families.
	Media education, particularly for the young, is probably the most crucial component for the future. So far, what little there is has taken place in an overcrowded curriculum. The new citizenship course has a small element built in, but much more is and will be needed.
	We have all acknowledged, at least tacitly, the growing influence of the electronic communications in our lives, not just our lives as we live them, but our culture, our attitudes and sometimes even our behaviour. We need think back only a few years to the impact of 9/11.
	Coming back to the importance of instilling values in the young, perhaps the most important is a degree of scepticism about what they watch, certainly in the citizenship course. As one teacher put it, the easily led or unwary citizen is disempowered. For that teacher,
	"media understanding and awareness are a significant and possibly essential aspect of political literacy"
	and what being part of society is about. That is why the ability to evaluate the message being sold in a programme and to detect, for example, any vested interest, will be increasingly important.
	In the very early days of television, I remember hearing Malcolm Muggeridge say in a discussion programme that he could make two television programmes on exactly the same issue which would lead the viewer to opposite conclusions. A rather chilling thought, despite the reputation for objectivity and impartiality enjoyed by British broadcasting, about the power, if unregulated, of the moving image combined with the spoken word.

Baroness Blackstone: I am very glad that the noble Baroness, Lady Buscombe, recognises the importance of Ofcom's duty to promote media literacy. This is a positive step towards empowering people. Let me say to the noble Baroness, Lady Howe, that of course "people" means "children". Of course children are included when it comes to taking greater responsibility for their use of the electronic media.
	Media literacy is part of the citizenship curriculum. We would expect schools to take this issue and make sure that young people are given the opportunity to become more media literate. But I do not really think that we need a specific reference to children on the face of the Bill. This is exactly the sort of issue that the noble Lord, Lord Peyton, referred to earlier, if I can say that to the noble Baroness, Lady Howe.
	I recognise that there was some concern in relation to the draft Bill that Ofcom should not become involved in the development of systems to support its media literacy duty. The drafting has been tightened up to make it clear that Ofcom's role is to encourage others to do so. That might be broadcasters, the electronics industry or software designers.
	It is important that Ofcom retains its duty to encourage the development and use of systems and technologies to help people regulate what they view. It is equally important that these systems are effective and easy to use. There are many systems available; there is also a great deal of confusion about what they do and how they work. We see Ofcom's role as a facilitator. It is important that it retains the role of bringing stakeholders together and encouraging the development of tools which are likely to be increasingly important to the public.
	I can give the noble Baroness the reassurance that I think she wants. This is not about picking winners; it would not be right for the regulator to start trying to tilt the playing field in the direction of any particular technology. The noble Lord, Lord Avebury, referred to that too.
	If the noble Baroness's amendment were accepted—and she made it clear that it was a probing amendment—Ofcom would have no duty to encourage the development of easy-to-use systems for regulating access which are very important tools with which to protect the public, particularly children, from unsuitable contents. I hope I have given the noble Baroness the reassurance she wants.

Baroness Buscombe: I thank the Minister very much for her response. I am grateful to the noble Baroness, Lady Howe of Idlicote, for her support. Notwithstanding the fact that I entirely accept the Minister's comments that children come within the meaning of the word "people", it is helpful to have that clear in Hansard, as much of this relates to children and the next generation. It is helpful to have had that discussion.
	I also thank the noble Lord, Lord Avebury, for his support and contribution to the debate. It is an important area although this is, as I made clear, a probing amendment. I am grateful to the Minister for her reassurance that it is not the role of Ofcom, nor should it be, to tilt the playing field in the direction of any particular technology or manufacturer of that technology. We do not want the clause deleted, as that would negate the possibility of developing the use of technologies and systems for media literacy. On that basis, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	[Amendment No. 41 not moved.]
	Clause 10 agreed to.
	[Amendment No. 42 not moved.]
	Clause 11 [Duty to establish and maintain Content Board]:

Lord McNally: moved Amendment No. 43:
	Page 11, line 31, after "OFCOM;" insert—
	"(aa) a member who is a non-executive member of OFCOM but is not either the chairman of OFCOM or the chairman of the content board;"

Lord McNally: We move to the clauses setting out the content board. Before we all get carried away with Peytonitis, let me state one important thing. We have had the experience that, if we do not write specific powers and duties into a Bill, very clever lawyers afterwards can say, "It's not in the Bill, so the regulator can't or shouldn't do it". Ministers should not get too attracted to the idea that broadbrush or light legislation will deliver what Parliament wants.
	As for my noble friend Lord Thomson's idea of government by Orders in Council, No. 10 will probably be studying his remarks as a possible new initiative. Perhaps that is the third way.
	I shall be brief because we have already heard the arguments, certainly to the amendments in my name, in the pre-legislative Select Committee. The amendment would give a central role to the content board. Our request for an extra member is so that content matters do not become only the isolated responsibility of a single member who is simply seen as Mr or Mrs Content. It would mean that there was a body of weight on the main board.
	The amendments also seek to give the content board executive teeth—probably to the chagrin of the noble Lord, Lord Peyton. Tessa Jowell said earlier that she wanted the executive and advisory balance to develop over time. It is all very well to have such faith in organic growth, but it is just as well to have those responsibilities written in from the beginning so that the content board has real weight within the Ofcom structure. That would allow the main board to concentrate on strategic issues and economic regulation while giving the content board a degree of autonomy and authority. To have that autonomy and authority, however, it must have powers and teeth. Through that, it would not become mere window-dressing, as some have feared, but a body in which external lay influences and authorities can have real confidence. I beg to move.

Baroness Buscombe: I notice that my noble friend Lord Peyton of Yeovil is not in his place to speak to Amendment No. 43A, so I shall speak to Amendments Nos. 44, 50, 53, 58 and 60. I also wish to speak in support of Amendment No. 57.
	All the amendments relate to the content board. It seems rather strange that we are here debating the make-up and constituents of the content board and their duties. A newspaper article tells me that the content board—albeit the shadow content board— is holding its inaugural meeting today. I find it extraordinary that we are considering legislation that is still in draft form, as a Bill, when a content board is already in place. It will be argued that it is only a shadow board, but it has gone ahead and been sorted out before we have had a chance to debate these clauses. That said, I wish the board well with its inaugural meeting.
	Amendment No. 44 seeks to ensure that, as far as is practicable, the membership of the content board shall be representative of the full range of significant political, cultural and religious attitudes in the UK. As the Bill stands, there are few constraints on whom Ofcom may appoint to the content board, subject to very general principles of good governance.
	The make-up of the board—that is, its constituents—is particularly important, because the Bill envisages Ofcom's role primarily as a commercial regulator, which is a very different function to that of broadcasting regulation. The argument that Ofcom should be left to its own devices does not stand in this area. Principles such as "due impartiality" are timeless and have little to do with the rapidly changing commercial market place that the Bill is designed to address. For example, on issues of political opinion, religious belief or cultural values, many people might find themselves in a minority, so the solution is increased access for minority groups. The legal framework to achieve that is already in place—due impartiality and balance—but the problem is to make those principles work in a pluralistic society. The amendment would ensure that Ofcom selects a content board that is minded to give concepts such as balance and due impartiality real meaning as it sets about its task of reviewing broadcasting codes of conduct for a pluralistic society.
	I turn to Amendment No. 50. Throughout the passage of the Bill, confusion has arisen as to the nature of the functions conferred on the content board. The amendment would ensure that, if a function were bestowed on the content board, the main board would not concurrently exercise its jurisdiction. As the Bill stands, there is no mechanism to prohibit this duplication; both boards could effectively exercise immediate responsibility on a particular matter. The amendment does not propose that ultimate and determinative responsibility should be transferred to the content board, only that the limitations within which it is to operate should be clearly defined.
	In another place the Minister for Broadcasting referred to the possibility that Ofcom and its content board would work together to establish a memorandum of understanding—or something similar. We do not believe that the informal approach to the issue adopted by the Government addresses the significant concerns of businesses facing double jeopardy. The confines within which each board functions must be established in the Bill. Our amendment makes clear those confines and so avoids the possibility of confusion and, worse still, of double jeopardy.
	I turn now to Amendments Nos. 53 and 58. Amendment No. 53 would give the content board a duty to evaluate what impact its actions have on business competitiveness. We have in mind in particular businesses that use broadcasting—or anything that will come under the remit of the content board—as a central part of its functioning. For example, a number of businesses are looking to use interactive digital television as a medium for communicating with customers, and it is unclear what the role of the content board will be in such cases. Will the content board be able to rule on issues even if that leads to the distortion of markets and companies being put out of business? If so, what assurance do we have that the content board even took that into consideration when making its decision?
	The amendment has the support of the CBI, which is concerned that UK business will not be a priority for Ofcom. What is worrying is that there is a consumer panel and content board but business is not represented in the same way in Ofcom and will not therefore have the clout to resist measures that result in an anti-competitive outcome. With that in mind, it is all the more important to include some detail in the Bill on the extent of the content board's intended powers so that there is no chance of their being misapplied in the future.
	"Content" is an integral part of the commercial service offering of broadcasting companies and companies producing multimedia services, but the changing nature of the market could mean that in future it will represent a key part of a much wider variety of businesses. Therefore we believe that a clause should be added to ensure that the content board has to take into account the impact of its decisions on companies that both now and into the future will use anything that comes under its remit as an integral part of their commercial service offerings.
	Amendment No. 58 is an attempt to rectify the imbalance which I outlined concerning the absence of a formal body or procedure whereby business interests are represented on Ofcom. It states that the content board's role of keeping OFCOM informed about,
	"the different interests and other factors",
	in Clause 12(4) which are relevant to the carrying out of Ofcom's functions should include information on how business competitiveness is or could be affected. We believe that that would go some way to ensuring that Ofcom is kept in touch with business and ensure that the regulator is aware of the potential impact of any regulations on competitiveness in this increasingly important area of economic activity and growth.
	Without the inclusion of this amendment in the Bill, there is a real danger that Ofcom, perhaps without realising, will do pointless damage to areas of British business owing to a lack of representation and information on the interaction of Ofcom's activities and the business community. We believe that our amendment would rectify that omission.
	Amendment No. 60 enables the content board to give informed advice on the provision and quality of content services for disabled and older people. Disabled and older viewers form a major public interest in relation to television and radio content yet they are not even mentioned in Clause 12. If the content board is to function effectively and perform its duties, this interest group must be effectively represented. We believe that the appointment of Kevin Carey, who is visually impaired, to the shadow Ofcom content board is very welcome. Kevin's experience as a director of Humanity and as vice-chairman of the RNIB has seen him work determinedly for the inclusion of all in the information society. We hope that the content board will, with his influence, work to champion the interests of disabled people.
	Amendment No. 60 seeks to provide a mechanism for ensuring that the content board is able to derive maximum benefit for those who may be disadvantaged within broadcasting. It would grant Ofcom the power to establish a committee or panel focusing on the interests of people with disabilities or special needs resulting from age or personal circumstance. For example, the content board will have a role in monitoring the quality of specific content services designed to maximise visually impaired and deaf people's enjoyment of television programmes. Those services also benefit older people and those with learning difficulties. In addition, the content board's function with regard to media literacy must target disabled people and other excluded groups as a priority. For that it will need an effective, co-ordinated input with a committee or panel dedicated to those interests. Such a committee or panel would greatly assist the content board in the execution of those functions. The profile of such initiatives must remain high and effectual.
	Finally, I should like to speak in support of Amendment No. 57, tabled by my noble friend Lord Crickhowell along with the noble Lords, Lord Puttnam, Lord McNally and Lord Hussey of North Bradley. As we heard, this provision grants the content board the power to publish information as it feels appropriate, reflecting the recommendation of Professor Eric Barendt given in evidence to the Joint Scrutiny Committee. While we welcome the creation of a content board, the confines within which the board will operate should be clearly defined. A framework needs to be established to ensure that the board enjoys public confidence and legitimacy. There has been considerable debate regarding its potential executive or advisory responsibilities and the interrelationship with Ofcom to which I have already alluded.
	We agree that ultimate responsibility for the content board should rest with Ofcom, but are concerned that the position of the board within the structure of the main regulator has not been properly considered. By publishing its views about conclusions and recommendations regarding its functions, the content board would enjoy greater popular confidence. That would allow a more lively and vigorous public debate on issues that directly interest and concern all members of society. We believe that this amendment provides a mechanism through which the functions of the content board will become less ambiguous and more transparent.

Lord Gordon of Strathblane: I should like to speak briefly to Amendment No. 45 in my name which seeks the deletion of subsection (8). I do so not because I object to the provisions of subsection (8), but because it seems that they are subsumed in the more general provision of subsection (9) which requires Ofcom to satisfy itself that the person to be appointed will not have a,
	"financial or other interest which would be likely prejudicially to affect the carrying out by him . . . of his functions".
	That seems perfectly adequate. I see no reason uniquely to single out the BBC and Channel 4 and simply to leave, for example, the MD of Sky, Channel 3 or an independent radio company for that matter to be caught under the provisions of subsection (9).

Lord Addington: I should like very briefly to add my support particularly for Amendment No. 60. I must apologise to the noble Baroness for not putting my name to the amendment—I think it a very good idea. It proposes establishing an advisory panel that actually knows about the issues affecting the various groups which can be sidelined. That is very important. We have had many discussions highlighting the fact that one such person on a board is probably not enough for the disability movement, and I think that the same applies to other groups. I hope that the Government can reassure us that there will be a mechanism in place to ensure adequate representation. One person on a board is simply not enough. One person often does not know enough about other types of disability. As I have said before, I know that from personal experience, having held the disability portfolio. I have often had to seek the expertise of others on specific issues and groups. I therefore hope that the provision will be accepted.

Lord Puttnam: I rise to speak in particular to Amendments Nos. 43 and 57, which I think deal with essentially the same problem. The Government must by now be very aware that there are enormous anxieties in various communities—the noble Baroness, Lady Buscombe, has just mentioned that the business community has its own anxieties—about the role and responsibility of the content board. We feel that Amendments Nos. 43 and 57 are totally sensible. Amendment No. 43 is sensible and is effectively already operating, as two non-executive members of the board will be members of the content board, which is just as it should be. If there is anxiety, surely it is in the Government's interest to alleviate it whenever and wherever possible. Here is a marvellous opportunity, at no cost and with no dispute, to put on the face of the Bill that the content board will in perpetuity contain at least two non-executive members of the Ofcom board.
	Amendment No. 57 deals with the right to publish. For all the reasons set out by the noble Baroness, Lady Buscombe, it is common sense that the transparency and reasoning behind the decisions of the content board should be made evident on at least an annual basis. It is the type of reassurance that every community wants and is entitled to have.
	All of that brings us back to Clause 3. These anxieties exist fundamentally because of the confusion in Clause 3 as to whether Ofcom's decision will be primarily market driven or citizen driven. Here is a marvellous opportunity to make clear to everyone what is driving these decisions.

The Lord Bishop of Manchester: I should like to speak briefly to Amendments Nos. 44, 60, 46, 48 and 57. I am perplexed about how Ofcom can be challenged over its failure to have regard to the desirability of reflecting the interests and opinions of people living in different parts of the UK. How is such failure to be measured? On what basis would evidence be produced? So I support the replacement of what seems to me to be a rather otiose provision with a provision that seeks to distil something of the essence of our community and our rich cultural and religious identity, and for that to be reflected in the make-up of the content board. I think that the inclusion of the word "significant" makes that a reasonable and achievable task. I think that Amendment No. 44 achieves a simple statement of key attitudes and sensibilities that colour views of broadcast content.
	Amendment No. 60 recognises that those needs must be spelled out. This provision is about those who are on the margins. We talk much and often about being an inclusive society, but, as we have already been reminded this morning, we must also remember to include the less visible, the young, the old, the sick and the housebound elderly. I give an example from a religious viewpoint. Very often people who are housebound, and therefore often invisible to most of us, are, as I know from my pastoral experience, among the most devoted audiences of religious provision and broadcast worship on television. This is no fringe sport. "Songs of Praise" shown on peak time regularly attracts an audience of over 5 million. Despite the unjustified complaints that have been made about ITV's religious remit and the showing of short services of worship, "My Favourite Hymns" on a Sunday has a smaller but still strong audience, particularly among the group that I have mentioned.
	Television worship has declined in the past three years whereas radio worship has not; yet I know directly from many elderly people, as well as from broadcasters, that the elderly and disabled find the presence of television worship a very great comfort. Many of them also find it easier to operate television than radio. These are issues that can be easily overlooked by those of us who are not disabled or have special needs. Therefore, a special committee or panel to keep in mind those kind of issues could be very helpful.
	I turn to Amendments Nos. 46, 48 and 57. It is most welcome that there is to be a separate content board within Ofcom, but to be effective it must have independence from government and industry. I cite what the noble Lord, Lord Dubs—who is not present at the moment—said at the Broadcasting Standards Commission annual review last year.
	I believe that the content board's independence is buttressed by giving it the statutory remit set out in Amendments Nos. 46 and 48 rather than one determined wholly by Ofcom. I believe that that is also true of Amendment No. 57 which gives the content board an independent voice rather than one subject to Ofcom's own communications needs and imperatives. I rather suspect that if Ofcom is to have the task of holding competitive freedom and quality regulation in creative tension, these competing demands will need to have their own voices. But it is not just independent voices that are needed. Especially when the reporting cycle for Ofcom is up to five years, voices are needed that can hold a broadcaster to account while the recollection of the broadcast is still vivid in the public memory.
	These amendments would reassure the public that the concerns of the listener and the viewer about content, which have certainly been addressed often to the Broadcasting Standards Commission, will still be seen to matter to the regulator.

Lord Phillips of Sudbury: I wish to support Amendment No. 43. It seems to me to be almost common sense to bind in, and have horizontal co-ordination between, Ofcom and the content board in the manner in which they are devised. I should also like to speak in favour of Amendment No. 44, in the names of the noble Baronesses, Lady Buscombe and Lady Wilcox. I am not sure whether the precise formulation of the intent is perfect but the general intention of the content board to ensure that those matters are considered, by itself in particular, makes much sense to me and addresses a considerable amount of anxiety about imbalance in the Bill in terms of underrating political, cultural and religious areas of concern.
	I am afraid that I at least wonder at, and probably oppose, Amendments Nos. 53 and 58, in the names of the noble Baronesses, Lady Buscombe and Lady Wilcox. It seems to me that to require the content board to have special regard to business interests in the manner prescribed in the amendments is unnecessary and imbalancing. I say that with regard to the keystone Clause 3 which tries to establish a balance between business and non-business issues, if I may put it so simply. Therefore, I doubt the wisdom of those two amendments.
	On the other hand, I strongly endorse Amendment No. 57. It seems to me self-obviously virtuous to allow the content board to publish information. It should do a great deal of that. Finally, I support Amendment No. 60, in the name of the noble Baronesses, Lady Buscombe and Lady Wilcox, and the noble Lord, Lord Luke, which seems to me to be meritorious.

Lord Brooke of Sutton Mandeville: I should clarify that I have no delegated authority from my noble friend Lord Peyton to represent him in the context of his Amendment No. 43A. Even if I were a delegated proxy for my noble friend, I should be a pale simulacrum of him although I can guess what his purpose was in putting down Amendment No. 43A. In his absence I ask a probing question of the Minister; namely, to tell us what purpose Clause 11(6), which my noble friend wishes to delete, fulfils. Is it the sort of copper bottoming to which the noble Lord, Lord McNally, referred as an amulet against marauding lawyers? If that is not its purpose, Clause 11(6) carries the unfortunate implication that the Government believe that it might slip Ofcom's mind to carry out the provisions of Clauses 11(4) and 11(5), in which case they would effectively become academic within the Bill.

Baroness Blackstone: I say to the noble Baroness, Lady Buscombe, that I believe she would be critical were the preparation not to be begun that is needed to ensure that Ofcom and, indeed, all its constituent parts, are ready to function on the prescribed date. No functions have yet been conferred on the content board nor are such functions predetermined while the Bill is still being debated in this House. It is a matter of the shadow board meeting and starting preparatory work. I am sure that the noble Baroness would welcome that.
	With one exception the Government resist the amendments in the group we are discussing, but I shall explain in some detail why we consider that the amendments, many of which lie within the grain of the Government's and Ofcom's thinking, should not form part of the primary legislation. I shall also move a minor government drafting amendment.
	Ofcom is aware that it remains ultimately responsible and accountable for the work and decisions of the content board. That is the fundamental point which lies behind everything that I shall now say in response to individual amendments. The appointment of Richard Hooper and Sarah Nathan from the main Ofcom board, as chairman and deputy chairman respectively of the shadow content board, along with Kip Meek from the Ofcom executive, demonstrates Ofcom's commitment to have the work of the content board fully within the ambit of the main board. I am sure that they will continue to make appointments with that in mind.
	Amendment No. 43 reflects a recommendation made by the joint committee. In the government response we recognised that there was a great deal of merit in the committee's proposal, but we concluded that that did not need to be specified in the legislation. However, having listened to the debate today, I can still see the merit in the amendment, especially in the light of the increase in the size of the main board, following another recommendation of the joint committee. The Government will therefore consider bringing forward an amendment at Report stage to achieve what the noble Lord, Lord McNally, seeks. I say to the noble Lord—this is relevant to many of the amendments we are discussing—that the content board can clearly have executive functions in the sense that it can carry out Ofcom's content functions. It will not simply advise Ofcom. That is an important point to remember.
	I turn to the amendment in the name of my noble friend Lord Gordon of Strathblane. Amendment No. 45 has the effect of removing one of the key provisions in Clause 11 which protects against conflicts of interest. I fail to see what benefits the removal of that protection would bring. The content board has the status of being the only committee Ofcom is required to establish, and it will play an important role. Therefore, it is crucial that adequate provisions exist to prevent members being compromised by other interests.
	We believe that those with a risk of self-interest in the decisions of the board should be disbarred from membership, and that membership of those bodies listed in subsection (8) can be clearly identified as posing such a risk. I would not be comfortable with having, to take one example, a governor of the BBC chairing a board examining and adjudicating on content issues across the whole broadcasting sector.

Lord Thomson of Monifieth: Will the Minister reply to the point made by the noble Lord, Lord Gordon, about figures representative of various other aspects of the telecommunications and broadcasting industry who could, equally with those three named, have conflicts of interest? Why are those three exclusively mentioned?

Baroness Blackstone: That is because the content board is concerned with issues that particularly affect the interests stated in the Bill.

Lord Thomson of Monifieth: I am sorry to persist, but what about Sky, for example? Does it not make programmes and so raise exactly the same issues of conflict?

Baroness Blackstone: I am perfectly willing to take away the particular issue of Sky, and perhaps write to the noble Lord as to why Sky is not mentioned in the Bill. However, the broader issues of telecommunications are not relevant, or are much less relevant, to the content board.

Lord McNally: Fully in line with the Peyton doctrine, subsection (8) can be subsumed by subsection (9). The Minister would do far better to look at strengthening subsection (9) rather than leaving subsection (8) with what seem some arbitrarily chosen organisations when, as my noble friend points out, many organisations could be put into the list. Instead of having a long list in subsection (8), a redrawn and tightened subsection (9) might do the job.

Baroness Blackstone: I have been reminded that other commercial interests are covered as well. I could write to the Members of the Committee who have raised the points and set out rather more clearly how we see them being resolved.
	Amendments Nos. 43A and 44 would remove a simple and standard provision similar to ones already in the Broadcasting Act 1990, to ensure that the decisions of the content board are not invalidated by a simple procedural error in appointment. I shall respond to the noble Lord, Lord Brooke, and say that that safeguard will protect the validity of the proceedings of the content board, so that a simple defect in procedure does not invalidate what could be a number of decisions.
	There is a similar provision in the Office of Communications Act 2002, as well as in many other Acts. I assure the noble Lord that such a standard provision is in no way intended to provide an excuse for deliberately evading the requirements of the legislation for proper representation. Without the provision, there could be serious consequences for the whole operation of the regime governing content standards.
	I shall deal with Amendment No. 44. The content board will have the principal function of ensuring that the public interest in the nature and quality of television and radio programmes is sufficiently represented within Ofcom's overall structure. To do that, it will have to be representative of many different aspects of the public interest, including different political, cultural and religious attitudes. Members will need to be able to respond effectively and convincingly to many matters to which Ofcom is to have regard as set out in Clause 3, so far as they are relevant to their work.
	Our first objection to the amendment is that the content board is not intended to be a balance of different interests. Each member has a responsibility to represent the wider public interest rather than a narrow sectional interest. The risk of a provision of such a nature is that, first, the content board would end up becoming simply a board representing the noisiest interest groups, and, secondly, any excluded group would challenge its validity. I am sure that Members of the Committee will see the sense in what I say.
	Amendment No. 60 focuses on a particular bureaucratic solution to ensure that the interests of certain groups are taken into account. The key point is that the Bill establishes the various interests that Ofcom has to take into account, including, for example, the needs of persons with disabilities. The content board is part of Ofcom—I keep having to repeat that—so that applies to it as well, so far as is relevant to the functions that Ofcom gives it. How that is done is up to Ofcom and the content board to decide. For example, it could be done through advisory committees of the content board, through its relationship with the consumer panel or other committees, or through membership of the content board itself.
	The amendment is unnecessary. However, I can tell the noble Lord, Lord Addington, that I of course very much welcome the appointment of Kevin Carey to the content board. That is one way in which it can be said that it will fully discharge Ofcom's duties in favour of people with disabilities. We must leave exactly how Ofcom wants to follow that up—for example, perhaps through separate advisory committees—to it.
	Amendments Nos. 53 and 58 assume a particular relationship between the Ofcom board and the content board, and then seek to intervene in it. Ofcom has a broad obligation under Clause 3 to balance a number of factors, including its duty to promote competition. Its arrangements for the work of the content board must not upset that balance.
	If Ofcom felt that it needed the content board to advise on the effect of its activities on competitiveness, the board could do so, but that again has to remain Ofcom's decision, with regard to obligations placed on it in other parts of the Bill. However, it seems more likely that Ofcom, two of whose non-executive members are currently on the shadow content board, will want to take their views of any risks to competitiveness which might arise in determining the extent of the discretion allowed to the content board. To ensure that there is no uncertainty once Ofcom assumes its powers, we expect it to provide a clear statement or memorandum setting out in detail the extent of the functions of the content board, giving its members, the public and the communications industry proper clarity about its role.
	Amendments Nos. 47 and 49 are in a similar vein, and seek to ensure that the content board undertakes Ofcom's function to promote media literacy under Clause 10. Ofcom is currently developing the precise remit of the content board and its relationship with the main board. We made clear in Clause 12(2) that, whatever functions Ofcom devolves to the content board, they must include the contents of material broadcast or otherwise transmitted by means of electronic communications networks, and with the promotion of public understanding or awareness.
	It therefore seems highly likely that the content board will have an important role in Ofcom's media literacy work. Indeed, the advertisements for content board members indicated that. However, it would be wrong to specify in legislation that the board should be entirely responsible for the function. We should not, for example, preclude in the legislation the establishment within Ofcom of a separate media literacy committee at some point in the future.
	The matters referred to in Amendment No. 52 fall, with one exception, within the description of functions in Clause 12(2) that Ofcom must confer on the board, to such extent and subject to such restrictions and approvals as Ofcom may determine. The exception is the reference in the amendment to Schedule 8. That schedule does not confer any function on Ofcom, but simply identifies various decisions—albeit that such decisions may be made in pursuit of Ofcom functions—which are not subject to appeal.
	Amendment No. 50 is also directed towards specifying more closely the relationship between the content board and the main Ofcom board; in this case, by ensuring that Ofcom and its content board do not undertake the same function. I recognise the risks of the possibility of double jeopardy occurring, where a business could be overseen by Ofcom and the content board; that was discussed in another place. Our position remains that despite its superficial appeal, the amendment could unhelpfully restrict the way in which Ofcom undertakes its functions. It may be the case, for example, that Ofcom wants to give the content board a function, while reserving for the main board decisions which relate to that same function, but which have an impact beyond a particular financial threshold. That should remain possible.
	We have placed on Ofcom a responsibility to have regard to good regulatory practice, including transparency. We anticipate that Ofcom will therefore be aware of the potential for double jeopardy and of course seek to preclude it wherever possible.
	On Amendment No. 57, although it may be appropriate at times for the content board to publish information, it would be undesirable for the legislation to place that discretion with the content board itself. I must repeat—in particular to the right reverend Prelate the Bishop of Manchester—that Ofcom remains responsible and accountable for the work and decisions of the content board. The work of the content board must fit in with Ofcom's overall strategy. Therefore, it should be for Ofcom to decide when and what to publish.
	I hope I have explained fully why the Government, while sympathetic to many of the views that noble Lords have put forward in speaking to the amendments, believe that it would be wrong to include them on the face of the Bill. The Government will consider Amendment No. 43 further, but I ask the noble Baroness to withdraw it.
	Finally, I turn briefly to Amendment No. 44A. The amendment simply corrects an earlier drafting error in order to make clear that paragraph 14(3) lies in the Schedule to the Office of Communications Act 2002. The earlier drafting omitted the word "schedule". I commend the amendment to the Committee.

Lord Brooke of Sutton Mandeville: Perhaps I may intervene before the noble Lord winds up. I followed precisely what the Minister said about Amendment No. 43A. However, it appears to me that if Ofcom or the content board were to fail to fulfil any of the Bill's provisions—I am not suggesting that they would be perverse—the wording of the amendment would offer them an amulet against judicial review. That seems curiously comprehensive, but I totally understand that the Government are trying to protect them against a simple slip of procedure.

Baroness Buscombe: I would also like briefly to respond to some of the Minister's replies to our amendments. I thank the noble Lords, Lord Phillips and Lord Addington, and the right reverend Prelate the Bishop of Manchester for supporting Amendment No. 60. I also thank the right reverend Prelate for his support for Amendment No. 44.
	We believe that this is an important subject. It would be inappropriate now to debate what different noble Lords might consider to be the wider public interest compared with the narrower sections of our public life or our citizens. Some might disagree with the Minister's interpretation of what the wider public interest might include in terms of those attributes that different members of the content board might bring. Perhaps that is a debate for another day.
	I understood the Minister's concerns about the wording of Amendment No. 50 in relation to the possibility of double jeopardy in terms of decision-making of the content board and Ofcom. Since the Minister's response was similar to that of the Minister in another place, perhaps I may suggest to her that consideration be given to Ofcom and the content board establishing a memorandum of understanding to ensure, as best as is possible, up-front that there is an avoidance of double jeopardy. While I accept the Minister's reasons for not including the amendment in the Bill and recognise the difficulty of finding the right wording to meet the possible problem, it would be helpful if there were such a memorandum of understanding.
	I heard what the Minister said about the amendments relating to the concerns of business. As I have already said, the amendment has the support of the CBI. It is deeply concerned about the interests of business. It does not believe that its concerns are answered in Clause 3 of the Bill. I will take back to the CBI the Minister's response to those amendments and will see if we might return to that subject on Report.

Lord McNally: By my count, we had one correcting amendment, one concession and one promise to write, so we are getting there. This clutch of amendments involves an attempt to get, as the noble Baroness, Lady Buscombe, rightly said, the balance right between the content board and the duties of the main Ofcom board. We moved the amendment because we were concerned by fears expressed to the Joint Select Committee that the content board would be mere window dressing. We were concerned that it should have proper autonomy in its operations. I suspect that the noble Baroness, Lady Buscombe, like me, is happy that Ofcom is not just waiting around but making active preparations for its job. We will study what the Minister said before considering how we might continue on Report the process of making this good Bill better. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	[Amendments Nos. 43A and 44 not moved.]

Baroness Cox: I remind the Committee that there is a mistake in the printing of Amendment No. 44A in the Marshalled List. It should read "after 'first' insert 'the Schedule to'".

Baroness Blackstone: moved Amendment No. 44A:
	Page 12, line 6, after "of" insert "the Schedule to"
	On Question, amendment agreed to.
	[Amendment No. 45 not moved.]
	Clause 11, as amended, agreed to.
	Clause 12 [Functions of the Content Board]:
	[Amendments Nos. 46 to 53 not moved.]

Lord Phillips of Sudbury: moved Amendment No. 54:
	Page 13, line 14, after "factors" insert "inter alia"

Lord Phillips of Sudbury: I hope that we can deal swiftly with this amendment and those grouped with it. Clause 12 describes the functions of the content board. Some noble Lords may have been perplexed when trying to get to the bottom of the wording of the clause. There is an anticlimactic quality about many of its subsections. Subsection (3) starts off boldly by stating that Ofcom "must have particular regard". It then refers to,
	"the desirability of securing that the Board have at least a significant influence".
	All in all, the discretion that Ofcom has over the powers and engagement of the content board is probably wider than some of us would have liked. However, there is one point at least that I commend to the Committee. Subsections (3) and (4), in prescribing what duties may be cast upon the content board, refer to matters,
	"of different interests and other factors as respects different parts of the United Kingdom".
	That phrase is used twice and indicates that although Ofcom has complete discretion in what it puts to the content board, it must have particular regard to,
	"different interests and other factors as respects different parts of the United Kingdom".
	That implies a regional bias or concern on the part of Ofcom, with which none of us would argue. My amendments seek to ensure that "different interests" is not confined to interests which are regionally based. It allows non-geographical "different interests" which cross regions—be they political, quasi-political, charitable, cultural or religious—to be given the same level of importance as regional and geographical "different interests". That is the purport of Amendments Nos. 54 and 56.
	In Amendment No. 55, I seek simply to replace the word "need"—that is, what needs to be taken into account in the views of the content board—with the less-demanding test of "ought reasonably". It reduces the threshold. I beg to move.

Baroness Blackstone: We do not want to prescribe further in the legislation the precise functions of the content board. Clause 12(3) and (4) have been drafted to embody the role that the content board has to play in ensuring that the particular interests of nations and regions are taken into account in Ofcom's work in licensing and setting standards for TV and radio.
	I do not believe that we should extend that to encompass other interests, nor is it necessary. The effects of an extension of this kind could be, in practice, to dissipate the focus of the content board on its responsibilities to the nations and regions, or on the matters which Ofcom has devolved to it.
	Of course, to the extent that Ofcom requires the content board to reflect diverse views in its work, that can be secured through the remit that is given to the board. Equally, if when carrying out its functions the content board felt that factors relating to different interest groups as regards the different parts of the United Kingdom were relevant, I am sure it would take those into account when advising Ofcom. Furthermore, in making appointments to the content board, as in all its other work Ofcom must have regard to the various matters listed in Clause 3, which includes the interest of the principal groups which have an identifiable interest in the work of Ofcom where those are not specifically defined elsewhere in the Bill.
	The drafting change suggested by the noble Lord, Lord Phillips, from "need" to "ought reasonably" in Amendment No. 55 has a negligible impact on the effect of subsection (4). Perhaps the noble Lord is concerned that the word "need" implies too strict a test. If so, I can assure him that it is not intended to make the board prove that some consideration is strictly necessary and the provision should not be read in that way.
	In the light of what I have said, I believe that subsection (4) as drafted strikes the right balance. I hope that with that assurance the noble Lord, Lord Phillips, will feel able to withdraw his amendment.

Lord Phillips of Sudbury: I am grateful to the noble Baroness for a full reply. She spoke of the danger of dissipating the focus of Ofcom and the board if the amendments are agreed to, but I believe the reverse to be the case. She also said that it is open to the content board to give such advice to Ofcom as it thinks fit in relation to different interests of a non-geographical nature. I fear that that is not the case, because the only area where the content board has the right to advise Ofcom is when Ofcom asks for its advice. I was trying to put different interest groups of a non-geographical nature on the same basis as those of a geographical nature.
	At this stage, I propose to do nothing more than beg leave to withdraw the amendment. However, I should be grateful if the Minister would reconsider the matter.

Amendment, by leave, withdrawn.
	[Amendments Nos. 55 to 60 not moved.]
	Clause 12 agreed to.
	[Amendment No. 61 not moved.]
	Clause 13 [Consumer research]:
	[Amendment No. 62 not moved.]
	Clause 13 agreed to.
	Clause 14 agreed to.
	Clause 15 [Consumer consultation]:

Viscount Falkland: moved Amendment No. 63:
	Page 16, line 40, at end insert ", with due regard to the need to prioritise the Panel's activities and make best use of its resources"

Viscount Falkland: In moving Amendment No. 63, I shall speak also to Amendments Nos. 64, 67 to 70 and 80. I shall speak first to Amendments Nos. 63, 64 and 67. The Committee will surely agree that it is unarguable that consumers need a strong voice in the electronic communications sector to ensure that their interests are effectively represented and taken into account by decision-makers and providers. An effective and expert consumer representative body is also vital to act as a counter-balance to other more powerful interests. The National Consumer Council has already welcomed inclusion of a provision in the Bill to set up a communications consumer panel, including the intention that it should be independent and operationally separate from Ofcom. However, the current wording in the Bill will preclude the panel from being able to comment on the breadth of consumers' interests in this sector as it prevents the panel from being able to give advice on matters concerning content.
	The panel will require the ability to do so for three main reasons. The first is the integrity of the project. If the intent is to create an integrated regulatory body because of converging technologies and markets, it is surely illogical for the panel's remit to be restricted to service delivery matters. The second is the breadth of the consumer interest and communications which encompass broad content issues such as choice, diversity and quality as well as service delivery. Universal access to public service broadcasting is a key consumer concern. The third is the unique independent role of the panel. It will be external to Ofcom, whereas the content board will be part of Ofcom and will have delegated regulatory functions.
	There are also concerns that the panel could overlap or duplicate content issues with the work of the content board, or concentrate unduly on content matters to the detriment of other consumer issues. That can be addressed in the following ways. The panel should be required to be transparent and accountable, particularly in terms of how it prioritises its work and makes best use of resources. It should have a duty to report annually on how it has fulfilled its duties. Ofcom and the communications consumer panel should be required to draw up a memorandum of understanding to formalise co-operative working relationships. The memorandum should guard against duplication but also recognise their distinctive roles.
	I turn to Amendments Nos. 68, 69 and 70. The Bill places a duty on Ofcom to provide the consumer panel with information. However, it also gives Ofcom unduly wide powers to withhold information, which could potentially severely hamper the consumer panel's ability to do its job. Right of access to information is an essential component of accountability that enables consumers to assess how well regulators are carrying out their activities, including how well they are fulfilling their duties towards consumers.
	When something goes wrong, information helps consumers to find out what has happened and why it has happened. Although Ofcom will be covered by the Freedom of Information Act 2000, this will not apply until the year 2005 when the Act will take effect. We are particularly concerned about the intervening period when Ofcom will be covered by the duties to provide information as set out in the Communications Bill—duties narrower than those that will apply under the Freedom of Information Act. Although we have concerns about the adequacy of the Act itself, it is bizarre that the consumer panel's right of access to information will be more curtailed by the Communications Bill than by the Freedom of Information Act.
	Under Clause 15 of the Bill Ofcom will be able to withhold information from the consumer panel on grounds of the need to preserve commercial confidentiality. However, the wording of Clause 15 is inconsistent with that of Clause 14, which would allow Ofcom to withhold publication of research if it,
	"would or might seriously and prejudicially affect the interests"
	of an individual or of a particular body. It is in the interests of consumers that the kind of information that can be protected within a cloak of commercial confidentiality is kept to the minimum, consistent with good governance and good business. We believe that a careful balance should be struck between legitimate commercial interest and consumer interest. In our view, Clause 15 should be amended so as to make it consistent with other parts of the Bill, namely, Clause 14.
	In addition, it is vital that consumer interest and the wider public interest are given due consideration and are not unfairly outweighed by narrower commercial pressures. Therefore, Clause 15 should be amended to include a public interest test as part of Ofcom's considerations about disclosure of information. That would also help to inspire greater public confidence in the processes of Ofcom.
	Where information is withheld, there are no time limits in the Bill for Ofcom to review such decisions; nor is there an explicit requirement that information be provided once the reasons for withholding it no longer apply. Clause 15 should be amended so as to place a duty on Ofcom to specify a time limit for reviewing the reasons for withholding information, as well as a duty to provide the information once those reasons no longer apply.
	Amendment No. 80 proposes that the panel should represent the interests of,
	"domestic consumers and small businesses in general".
	In terms of representing the interests of specific groups of consumers, Clause 16 of the Bill states that Ofcom must ensure that there is a different member capable of representing the interests and opinions of people living in England, Scotland, Wales, and Northern Ireland. It also states that Ofcom must make "secure" that the panel is able to give "informed advice" about matters relating to the interests of people in rural and urban areas, those of small businesses, as well as,
	"the interests of disadvantaged persons, persons with low incomes and persons with disabilities; and . . . the interests of the elderly".
	The panel will also be required to have regard to the interests of people from different parts of the United Kingdom, together with the interests to which I have already referred.
	However, as I am sure Members of the Committee will agree, it is unrealistic to expect one individual to be able to represent the interests and needs of each group. Moreover, the interests of people within the groups that I mentioned are not homogenous; for example, one disabled person cannot represent the spans of interest or the needs of people with different disabilities. There is a diverse range of consumer interests that needs to be represented in the electronic communications sector, which includes not only those of the groups that I mentioned but also a variety of other interests, such as those of people from minority ethnic communities, together with those of the very young and children.
	It appears that representation of consumers' interests is being confused with a general notion of representativeness. The Bill should ensure that the panel is able to achieve an expert representation of the diversity of consumers' interests as well as those of the generality of consumers. It is crucial that the panel should work cohesively as a whole to fulfil its duty to represent the diversity of consumer interests. All panel members should share collective responsibility in all these respects. To ensure that this happens in practice and to make sure that the panel operates both transparently and accountably, it should be required to report annually on how it has represented the diversity of consumers' interests, as well as on how it has sought to fulfil its general duties for domestic consumers and small businesses. I beg to move.

Baroness Buscombe: I shall speak to government Amendment No. 65, which would appear to allow Ofcom to seek advice from the consumer panel on content matters. We believe this to be a surprising move, and one which gives some cause for concern. Until now, the Government have appeared satisfied with the delineation of responsibilities between the consumer panel and the content board. We have supported their approach. Clause 15(3), (4) and (5) have been drafted with precision in order to give clear guidance as to the matters on which the consumer panel should, and should not, give advice—an approach that we welcome.
	However, Amendment No. 65 appears to erode those clearly defined boundaries providing the consumer panel with an advisory function in relation to content. While, in the first instance, this may relate only to content matters referred to the consumer panel by Ofcom, it is easy to see how that could expand through the demands of the panel—even where the content board contains appropriate representation and expertise—and also to envisage the political difficulty that Ofcom would have in limiting the scope and duration of consumer panel advice on content matters once the door is opened through the Government's amendment. The esteemed board members of Ofcom are unlikely to wish to suffer accusations, perhaps in headlines on an ongoing basis, no matter how misfounded, that they are "anti-consumer" because they are refusing to allow the panel to advise in all the areas that it wishes to input, again, irrespective of the expertise and representation that exists on the dedicated content board.
	I should be grateful if the Minister could explain why he has seen fit to introduce this new provision. In what circumstances is it envisaged that Ofcom would need to seek advice from the consumer panel on content matters? How will the problems that I have outlined be avoided?

Lord McIntosh of Haringey: I am grateful to the noble Viscount, Lord Falkland, for the way he introduced this group of amendments. I am certainly glad to have this opportunity to respond, especially on Amendments Nos. 65 and 66. Although the latter is separate, it would in effect negate Amendment No. 65.
	The amendments deal with the fundamentals of the consumer panel: what it will do; its relationship with Ofcom; and how it will deliver for different groups of consumers. As part of its remit, it is our intention that the consumer panel should represent an independent voice for consumer interests to counterbalance the very persuasive industry voices that will be lobbying Ofcom.
	We want the consumer panel to be as well organised, well informed and authoritative on behalf of consumers as industry will undoubtedly be on the other side of the equation. We have ring-fenced the work of the panel so that it is concentrated on areas that are of real concern to citizens as consumers—service delivery, price, quality, safety, and complaint handling.
	Clause 15(3), which is the kernel of this part of the Bill, lists all the matters about which the panel will have to be able to give Ofcom advice.
	We have given the panel flexibility to look into any other matter—except a matter relating to content to which I shall return—which it considers would provide protection for consumers in the relevant markets. I believe that the joint committee got it right when it said that the panel should be the conscience not the creature of Ofcom. It will be a legally separate, unincorporated body operationally independent of Ofcom. It will have independence of thought. It will have the power to commission and publish its own research and will be able to give advice to other bodies as well as Ofcom. It might advise the Office of Fair Trading. It might deal with European institutions when new directives are being considered. It might advise government bodies or industry bodies such as ICSTIS.
	Ofcom has to consider the consumer panel's advice. It must have regard to that advice where appropriate and the results of any research about which the panel has notified Ofcom. If it chooses not to follow the panel's advice wholly or in part it will have to give the panel its reasons for disagreeing. It will have to ensure that people who are aware of the panel's advice are also informed of Ofcom's reasons. That is a good deal of power for the consumer panel.
	We have discussed appointments to the consumer panel. The noble Lord, Lord Puttnam, was not in his place when the amendments were moved. I should not deny him the opportunity to make his points, probably after lunch rather than trying to deal with them now.
	I return to the amendments moved by the noble Viscount, Lord Falkland. In speaking to Amendment No. 67, I believe the noble Viscount referred to a memorandum of understanding.

Viscount Falkland: No.

Lord McIntosh of Haringey: No, probably not on this occasion, although I think the noble Baroness, Lady Buscombe, did in response to an earlier amendment.
	Amendment No. 63 would require the panel to prioritise its work and make best use of its resources. This really comes under the stricture of the noble Lord, Lord Peyton. These are sensible, grown-up people. Surely, they will prioritise their work just as they are going to get to work in the morning. We do not need to tell them on the face of the Bill to prioritise their work.
	Amendment No. 64 would make it more difficult for the consumer panel to prioritise its work if its remit is widened, as is suggested in Amendment No. 64. We focused the remit of the panel on issues that are of key concern to consumers. We do not want to swamp the work of the panel by giving it a free rein to consider matters of content. That is the job of the content board. However—this is the point of Amendment No. 65—we are prepared to give the consumer panel the power to consider matters of content which are referred to it by Ofcom. That is quite restrictive. I do not see any suggestion there that this is a power which could expand, although the noble Baroness, Lady Buscombe, seemed to think that it might.
	Here, we are talking of content matters which have a high consumer dimension—for example, misleading advertising. It is a matter of content, but something with which consumers are very much concerned. I believe that the consumer panel could be properly given the responsibility of considering such matters without infringing on the role of the content board. For that reason, in moving Amendment No. 65 I want to resist in advance Amendment No. 66, which, as I have said, would negate it.
	The noble Viscount, Lord Falkland, referred to the information-sharing issue, which is raised by Amendments Nos. 68, 69 and 70. Ofcom will have to provide the panel with all the information it needs to carry out its role, but it has to pay regard to commercial confidentiality. I do not think that there is any issue here with the Freedom of Information Act. Both Ofcom and the panel will be subject to the Freedom of Information Act. When it comes into effect on 1st January 2005, we would expect Ofcom to abide by the principles of the Act. But in any case the provisions for Ofcom giving information to the panel are wider than those in the Act, so it need not, I think, be a problem.
	We should not be complacent, but we should view the sharing of information provisions in Clause 15 from the starting point of the mutually beneficial relationship that Ofcom and the panel will have. We have taken specific measures to ensure that we are not creating an adversarial relationship. Ofcom will share information with the consumer panel and in return it will benefit significantly from the advice that the panel provides to it. The amendments go beyond the boundaries of what we have in the Bill on commercial confidentiality.
	Commercial confidentiality is a well-understood concept. It is understood by the courts in cases of dispute. I am afraid that these amendments would give Ofcom more grounds rather than fewer grounds on which it could withhold information. I think it would go in the opposite direction from that which the noble Viscount, Lord Falkland, clearly intends.
	Clause 15(9)(b) allows Ofcom to withhold additional information requested by the panel but only where there are good reasons for it to do so. It must have reasonable grounds for not providing information and its general duties will apply in doing so. Amendment No. 70 would require Ofcom to estimate when information withheld from the panel would cease to meet the criteria for withholding, at which time it would have to review the withholding of the information. That is a tall order. Ofcom would have to look into the future and consider when the information would cease to be commercially sensitive, and then, regardless of whether the information would still be of use to the panel, it would have to review the withholding of it. Surely, a better way would be for the panel to repeat its request for information if it still required it after a reasonable period of time.
	On Amendment No. 80 I can be brief. Yes, I heard the powerful case made by the noble Viscount, Lord Falkland, for an annual report. Bearing in mind the points that he makes about different types of consumer and diversity of consumers, we are prepared to consider the amendment between now and Report.

Baroness Buscombe: I am aware of the clock, but given that the Minister's response was relevant to Amendment No. 66, perhaps I may speak extremely briefly to it in response to what the Minister said on Amendment No. 65. I accept his remarks on Amendment No. 65. The matters that would be referred to the consumer panel would have a high consumer dimension. The purpose of Amendment No. 66 was to give clarity and to define more clearly what we believe the role should be to ensure no erosion of boundaries between the content board and the consumer panel on certain issues. However, I hear what the Minister said. It is helpful that we shall now have in Hansard reassurance from the Minister that there is, certainly in the Minister's mind, clarity in terms of the kinds of issues that might be referred. He used an example of misleading advertising as something which would have a high consumer dimension. On that basis, having spoken to Amendment No. 66, I shall not move it.

Lord Avebury: Are we debating Amendment No. 66? If the idea is that we should discuss it with this grouping, there are one or two points I should like to raise. It seems to me that the amendment precludes Ofcom from asking the consumer panel's advice on anything broadcast or otherwise transmitted by means of electronic communications networks. Obviously, it follows that if the consumer panel is not able to give advice on those matters by virtue of Clause 15(5), Ofcom should not ask it for any such advice under 15(6)(c). In the unlikely event that it did, in the absence of the express prohibition contained in the amendment, the consumer panel would have no choice but to say that it was unable to help Ofcom.
	So I am not sure that we must spell out the obvious limit to the advice the consumer panel can offer that it must be under one or more of the headings in subsections (3) and (4) and that it must not be under the heading mentioned in subsection (5). If it is, why single out one rather than the others? The Committee may think that it would be better to make it clear what the limits are on the requests Oftel can make and, instead of this amendment, to insert at the beginning of Clause 15(6)(c), "subject to subsections (3), (4) and (5) of this section".

Lord McIntosh of Haringey: That is a possibility. I hope that I have made it clear that we consider this to be a fairly exceptional case. We are concerned that the consumer panel should not overlap with the responsibilities of the content board.
	I also want to make clear that what I now say is not new. After all, the very words that I used about a high consumer dimension were used in the policy document which was published alongside the draft Bill. Paragraph 4.2.3 on page 22 states that,
	"although the Panel's primary focus will be on service delivery, it can also be called upon to address content issues . . . that have a high consumer dimension, such as rules on misleading advertising".
	Our Amendment No. 65 gives effect to the phrase "called upon".
	Furthermore, since the noble Lord, Lord Puttnam, is in his place, I make it absolutely clear that the fact that we started on this group of amendments because it was "not yet half past one" does not in any way inhibit him from having a full debate on his Amendments Nos. 72, 76 and 77, which we will reach in their place when we return after Starred Questions.

Viscount Falkland: I thank the Minister for his full reply within the time constraints which he has at his disposal, and specifically as to my Amendment No. 80 on which he was particularly helpful. We shall read carefully his remarks and come back as and when necessary, although many of the amendments to which I have spoken have been probing ones.
	I do not know whether the Committee agrees but I think we have run on to a degree which is becoming outrageous. We are supposed to stop at half past one, or close to it. We have had to rush through the amendment. I admire the way the Minister has done that. There is a crude Army expression that one might use for the way in which the Government have decided when to break this afternoon.
	I put on record that the usual channels must get together their act on this breaking near half past one. It imposes an intolerable strain, particularly as regards the kind of amendments we have discussed recently. People have calls of nature, want to go to lunch and do various other things. The Government must take this matter more seriously before we end these ludicrous arrangements which have been imposed upon us for this year and which I hope will quickly be put back in their normal place next year. Having said that, I beg leave to withdraw the amendment.

Lord Puttnam: Before the noble Viscount sits down, perhaps I may support what he said. I have worked extremely hard, as have other noble Lords, to create an atmosphere of goodwill towards the Bill. That atmosphere of goodwill has been severely strained in the past 20 minutes. It was a great mistake by the Government to attempt to start this group of amendments before lunch.

Amendment, by leave, withdrawn.
	[Amendment No. 64 not moved.]

Lord McIntosh of Haringey: moved Amendment No. 65:
	Page 17, line 5, leave out "matters that concern" and insert "any matter (other than one referred to them for advice by OFCOM) that concerns"

Lord McIntosh of Haringey: The amendment has been spoken to. I beg to move.

On Question, amendment agreed to.
	[Amendments Nos. 66 to 70 not moved.]
	Clause 15, as amended, agreed to.

Lord Evans of Temple Guiting: This may be a convenient moment for the Committee to adjourn until after Starred Questions. I therefore beg to move that the House do now resume.

Moved accordingly, and, on Question, Motion agreed to.
	House resumed.

Northern Ireland Assembly (Elections and Periods of Suspension) Bill

Returned from the Commons with the amendments agreed to.

Lord Evans of Temple Guiting: My Lords, I beg to move that the House do now adjourn during pleasure until 3 p.m.

Moved accordingly, and, on Question, Motion agreed to.
	[The Sitting was suspended from 1.55 to 3 p.m.]

Royal Assent

Lord Irvine of Lairg: My Lords, I have to notify the House, in accordance with the Royal Assent Act 1967, that the Queen has signified her Royal Assent to the following Act:
	Northern Ireland Assembly (Elections and Periods of Suspension) Act.

Fur Farmers: Compensation

Lord Kimball: asked Her Majesty's Government:
	What progress has been made over the compensation payment to fur farmers.

Lord Whitty: My Lords, the Government introduced a compensation scheme through the Fur Farming (Compensation Scheme)(England) Order 2002. Following a challenge by fur farmers, the order was quashed by the High Court on 13th March 2003. The Government have been granted permission to appeal. The appeal is listed for hearing between 31st October and 27th November. In view of the current litigation, the House will understand that I may be somewhat constrained in the answers that I can give hereafter.

Lord Kimball: My Lords, I can hardly thank the Minister for such a reply. Has he no sense of shame? It is grossly unfair that for the past four years fair compensation has been denied to the fur farmers. The High Court found defects in the compensation scheme. The Government come out of this as really bad losers. Surely the proper thing to do is to rectify the defects and draw a line under that unhappy conclusion.

Lord Whitty: My Lords, the courts found some defects in the balance of the scheme, but it did not of course deal with its quantum, which is what really lies behind the fur farmers' concern. Until we receive the result of the appeal and any implications for a future scheme, I cannot really go further in stating the Government's intentions.

Lord Hardy of Wath: My Lords, although one cannot comment on the legal situation, does my noble friend accept that the argument in favour of compensation was to ensure that mink were not released or allowed to escape as the businesses were properly wound up? Were there any such escapes or releases? We must ensure that no further mink enter the wild and do enormous damage to British wildlife.

Lord Whitty: My Lords, my noble friend is well aware that there were releases into the wild while we were discussing the closure of the mink fur industry. However, I am unaware of any such escape or release that related to closure as a result of legislation, which was conducted responsibly.

Baroness Miller of Chilthorne Domer: My Lords, when the Bill went through the House, we supported it because we believed in ending fur farming. However, I made the point that it was imperative that compensation should be fair, transparent and quick. When she replied, the Minister said that it would be transparent and fair, but that some time would need to be taken to negotiate what was fair. When supporting the Bill, we did not believe that it would take so long or that the Government would take an attitude that does not now seem to be very fair.

Lord Whitty: My Lords, without straying into the subject matter of the litigation, the Government believed that our proposition was fair and would be quick. The reason that it has not been quick is that it has been challenged. We must therefore await the outcome of the full legal proceedings before fur farmers will receive their compensation.

Lord Mackay of Clashfern: My Lords, is the Minister aware how pleased I am personally—others may share my delight—at the respectful way with which he has spoken of a judgment in which his department was found to be wrong?

Lord Whitty: My Lords, I shall pass on the noble and learned Lord's comments to my colleagues.

Baroness Gale: My Lords, does my noble friend agree that the passing of the Act to end fur farming in this country was carried out on moral grounds? Is he further aware that people who care about animal rights and animal welfare greatly welcome its passing, and that the only reason that fur farming was carried out in this country was to appeal to the vanity of many women in the fashion industry?

Lord Whitty: My Lords, there was clearly a great deal of feeling in the country about mink farming, which is why the Bill was introduced in the first place. The Government shared the view of those behind the ban that the cultivation of animals solely for their fur, when the animals had to be killed to obtain that fur, was not an appropriate activity in this country in our society today. That is why the ban was introduced, and why it received widespread support in the House and outside.

Baroness Byford: But, my Lords, does not the Minister accept that we find ourselves in a disgraceful situation today? It is four years since the Act was passed. Compensation was due to be paid; it has not been paid. Obviously, until after the next court hearing—until November—no money will be paid. I do not think that the Minister is at present constrained by litigation; no court case is under way at present. Will the Government consider making some modest adjustment to help those who have lost their livelihoods by dint of the Government's deeds?

Lord Whitty: My Lords, some compensation was paid. The court's judgment was that the basis of that and pending compensation was unreasonable. We are now appealing against that. Strictly speaking, one could argue that the Government should have sought to recover the compensation paid under our formula. The Government have not sought to do that, but it would be unreasonable to expect the Government to pay out further compensation until the appeal court has made its judgment.

Baroness Golding: My Lords, does my noble friend agree that there can be no morality if people are deprived of their jobs without proper agreement that they should receive compensation? Does he not recall that there were many efforts to reach agreement before the Act became operative? What does he have to say about that?

Lord Whitty: My Lords, the Government always accepted that there would need to be compensation; its range covered not only loss of profit but many changes to their business premises that fur farmers would have to implement. We felt—and still feel—that the structure of compensation that we put in place was fair. As I said, that has been and will continue to be a matter for the courts' judgment, but I certainly accept that compensation was appropriate at that time. We tried to reach agreement with fur farmers on the basis of that compensation, but we continue to argue that what we did was appropriate.

Lord Ackner: My Lords, will the Minister tell us what is the state of play with regard to the appeal? When does he anticipate it happening? Has any attempt been made to expedite it and, if not, why not?

Lord Whitty: My Lords, it is not really for the executive to determine the dates on which the judiciary take cases. As I said in my initial Answer, the date has been provisionally fixed between the end of October and the first week in November.

Teaching Assistants

Lord Dormand of Easington: asked Her Majesty's Government:
	Whether they have any proposals to change the regulations so as to permit unqualified classroom assistants to teach in schools.

Baroness Ashton of Upholland: My Lords, we are introducing the first ever regulations governing the role taken by teaching assistants in schools under Section 133 of the Education Act 2002. The regulations allow teaching assistants and other adults without qualified teacher status to undertake teaching activities under certain circumstances, including supervision by a qualified teacher. We are currently consulting for a second time on draft regulations under that section with the intention of bringing them into force by July 2003.

Lord Dormand of Easington: My Lords, it would be interesting to know what are the "certain circumstances" mentioned by my noble friend. Is she aware that, in what I understand is an increasing number of schools, classroom assistants are teaching either full-time or part-time? Does she not agree that it is a serious matter when unqualified people are teaching? Can she tell us how the Government collect the figures to show where classroom assistants are undertaking teaching duties? The shortage of teachers and the financial difficulties being faced by local authorities are giving rise to abuse, which must be resisted.

Baroness Ashton of Upholland: My Lords, I am not sure that I would agree entirely with my noble friend on the idea of abuse within our schooling system. However, as I stressed during the passage of the Education Bill, I wish to emphasise the need to be clear about the role of our professional qualified teachers and the roles of those who support them. Within that, those undertaking certain classroom work in a school must be doing so, first, to support the work of a qualified teacher, secondly, under the supervision of a qualified teacher, and, thirdly, with the knowledge of the head teacher that the assistant has suitable experience and qualifications and, as we move towards it, accreditation. Only under those circumstances would it be allowed.
	I want to comment briefly on a further point made by my noble friend. Under some circumstances in our schools, we have people with, for example, linguistic skills or specialist knowledge of sport or other areas working with our children in a whole class. We believe that, under certain circumstances and in the appropriate conditions, teachers can leave the classroom but the person teaching the class on behalf of the teacher will be doing so under supervision and in support of a qualified teacher.

The Lord Bishop of Portsmouth: My Lords, does the Government agree that this is not a matter of retrenchment based on fear? The anomalies mentioned by the noble Lord, Lord Dormand, should not be allowed to undermine the proper development of the teaching profession, supported by appropriate voluntary work, in changing times and circumstances.

Baroness Ashton of Upholland: My Lords, I agree entirely with the right reverend Prelate and it is a pleasure to do so. This is part of the work being done under the national agreement, working with all the trade unions except for the National Union of Teachers, which was not prepared to come with us completely on this journey. It is also part of our efforts to ensure that we give our qualified teachers a better deal.

Baroness Blatch: My Lords, does the noble Baroness agree that those noble Lords who laboured with her on the Education Bill are still none the wiser? We do not know what is the definition of these teachers, and we do not know yet under what specific circumstances and situations they will work. Genuine fears have been expressed that they will be used as teachers on the cheap. Will the noble Baroness now make it absolutely clear whether teaching assistants, whoever and whatever they are—we do not yet even know what their qualifications are to be—will be taking classes when the teacher, for whom they are working and whom they are supporting, is not present or may even be away and not on the premises?

Baroness Ashton of Upholland: My Lords, to enlighten the noble Baroness and others, I shall describe the specified work. We have set out particular activities: first, the planning and preparation of lessons to enable our teaching assistants to participate in those tasks; secondly, under certain circumstances, delivering lessons to pupils, perhaps via use of computer links as well as by direct teaching; and, thirdly, assessing and recording the development, progress and attainment of pupils, as well as reporting on that development and attainment. In my previous response I described how it would be appropriate for someone with linguistic skills to become involved in the teaching of foreign languages.
	The people able to carry out this work will fall, in a sense, into one of three categories: those who are qualified teachers; teachers without qualified teacher status, such as student teachers, instructors and overseas-trained teachers; and support staff who can carry out, under the conditions I have described, work to support the qualified teacher, under the supervision of the qualified teacher and where the head teacher is satisfied. Noble Lords will recognise those categories. Under those circumstances, a teacher may not be in the classroom. I can envisage very few circumstances where the teacher would be entirely absent from the school. However, certain individual circumstances could arise where that would apply, but it is not the same as our proposals for cover when teachers are absent and where cover supervisors will be responsible for ensuring that classes are covered.

Baroness Sharp of Guildford: My Lords, as the Minister has made clear, the guidelines are currently being discussed with a view to implementation later in the year. Given that the National Association of Head Teachers, one of the unions that has agreed the workload agreement, puts the minimum cost of implementation for a primary school at £21,000 and that for a large secondary school as high as £900,000, can the Minister tell us from where the money to finance the workload agreement is to come and whether it is likely to be implemented later during this year, bearing in mind the financial difficulties currently being faced by schools?

Baroness Ashton of Upholland: My Lords, although I shall correct this if I am wrong, I understand that 19 changes are due to come into force in September. Most of those changes are administrative in nature and we are in no doubt that we shall be able to cope with them within current budgets. I am sure that noble Lords will be gratified to hear that.
	As regards the other changes, as a part of all the negotiations that took place on this agreement the issue of how it was to be funded was dealt with. We are confident that, by 2005–06, when the agreement will be fully enacted, the money will be there.

Lord Pearson of Rannoch: My Lords, is the Minister aware that many would congratulate the Government if they were to encourage people to teach whose children are now grown up and who themselves had achieved good A-levels or a good degree, rather than teachers who have achieved perhaps two Es at A-level and the somewhat doubtful benefit of a teacher training degree, and who are yet to have the experience of bringing up children?

Baroness Ashton of Upholland: My Lords, our teaching workforce is made up of a whole variety of people who bring excellence, experience and expertise of different kinds. We are very fortunate in the quality of our teaching staff. If the noble Lord, Lord Pearson, has any doubts about that, he has only to look at the annual report from the chief inspector of Ofsted, which states that we now have the best generation of teachers ever.

Disabled People: Law Reform Proposals

Lord Ashley of Stoke: asked Her Majesty's Government:
	Whether they intend to implement the proposals for law reform suggested by the Disability Rights Commission.

Baroness Hollis of Heigham: My Lords, our priority is to implement our manifesto commitment on extending rights and opportunities to disabled people. We have announced that we will publish a draft disability Bill later this year. On 8th May we laid draft regulations before Parliament to implement the disability provisions of the Article 13 employment directive. We shall consider the recommendations made by the Disability Rights Commission as we further develop our plans.

Lord Ashley of Stoke: My Lords, I thank my noble friend for that response. Is she aware that, despite the fine work done by this Government on disability, our legal framework fails to provide comprehensive civil rights for all disabled people? That is because the framework is full of holes which could have been repaired long ago. Is she further aware that the proposals put forward by the Disability Rights Commission go a long way towards solving these problems? Will the Government take on board the proposals as soon as possible? How soon will that be?

Baroness Hollis of Heigham: My Lords, perhaps I may suggest to my noble friend that he is repeating his original Question. I hope and expect that we will be producing a draft disability Bill later this year. Already by October 2004, around 70 per cent of the original task force recommendations will have come into law, and the proposed disability Bill will extend those recommendations further. The additional recommendations identified by the DRC referred to by my noble friend will assist our future legislative plans and obviously we shall consider them.

Lord Campbell of Croy: My Lords, will the Government give special consideration to the commission's proposal that disability discrimination cases should be started in the relevant tribunals rather than go straight to the courts? This would be helpful to the disabled people concerned.

Baroness Hollis of Heigham: My Lords, again, we shall look as soon as possible at those and related proposals in the DRC report, which we have only just received.

Lord Carter: My Lords, when considering the various proposals regarding disability, will my noble friend give any thought to bringing forward improvements to the Access to Work Scheme? Furthermore, if the disability Bill is published in draft for pre-legislative scrutiny, does my noble friend agree that such scrutiny would be an ideal subject for a Joint Select Committee of both Houses?

Baroness Hollis of Heigham: My Lords, perhaps I may respond first to my noble friend's second question. Given that the Bill will be subject to prior scrutiny, which I am sure would be very desirable, I understand that we shall have three options available. First, we could set up an ad hoc committee of either House. Secondly, as my noble friend suggested—and I see the advantages of the proposal—we could have a Joint Committee of both Houses. Thirdly, such a draft Bill could equally be referred to the House of Commons Select Committee responsible for matters affecting the Department for Work and Pensions. Those options are being considered. As soon as a decision has been arrived at, it will of course be made public.
	On my noble friend's first point regarding the Access to Work Scheme, he is right to point out that we have a good record on this. The scheme was started by the previous administration. Since its introduction, over 100,000 people with disabilities have either gone into work or stayed in work as a result of the programme, which gives them support equipment. Since 1997, I am pleased and proud to tell the House that the Government's expenditure on the scheme has trebled.

Lord Addington: My Lords, I thank the Minister for the encouraging remarks she made in her previous answers. But does she not agree that it is very important that we plug all the holes and take an all-encompassing approach? If we do not do that, the current situation will continue; that is to say, people with a degenerative disease or who are predetermined to develop a degenerative condition have no defence in law if they are sacked because of it. The Government should attempt to block such a hole.

Baroness Hollis of Heigham: My Lords, the noble Lord, Lord Addington, is right. It is one of the issues that have been raised with the Government. In our previous debate in the House, a fortnight ago, I made clear that one of the areas that we expected such a draft disability Bill to address was the precise one that he raised: extending the protection of the DDA to people with HIV and cancer whose symptoms are not yet evident. At present, they can be discriminated against. That is one of the proposals that we expect to bring forward.

Lord Skelmersdale: My Lords, given the Communications Bill, which received pre-legislative scrutiny and is being discussed today, yet again, in the House, perhaps the noble Baroness will reconsider whether pre-legislative scrutiny is a good idea, whether in this or any other area. Does she agree that it is no longer good enough that the 40,000 or so statutory and political office-holders, magistrates and school governors are still excluded from the Disability Discrimination Act?

Baroness Hollis of Heigham: My Lords, in response to the first point, no. On the second point, which relates to magistrates and councillors, I share the noble Lord's view. We are looking at the matter. Different circumstances affect councillors, magistrates, members of voluntary bodies, public appointments and quangos.

Baroness Wilkins: My Lords, can the Minister assure us that all aspects of the consultation process on the draft disability Bill will be accessible to as wide a number of disabled people as possible, and that the Bill will be available in alternative formats at the same time as it is published in print form?

Baroness Hollis of Heigham: My Lords, I shall seek to ensure that.

Drug Side Effects: Reporting System

Lord Clement-Jones: asked Her Majesty's Government:
	In the light of the concerns about the anti-depressant drug Seroxat, whether they plan to review the yellow card scheme for reporting drug side effects.

Baroness Andrews: My Lords, the yellow card scheme is recognised to be one of the best in the world in terms of the level of reporting. It has a proven track record of identifying new drug safety hazards and enables the monitoring of all medicines, including Seroxat, in clinical use. The effectiveness of the scheme is under continuous review by the Medicines and Healthcare Products Regulatory Agency and the Committee on Safety of Medicines. From April 2003, the first phase of patient reporting of suspected adverse drug reactions via NHS Direct was introduced. That will enable the first-hand experiences of patients to be utilised in the identification and assessment of drug safety issues.

Lord Clement-Jones: My Lords, I thank the Minister for that reply. I thought that she was somewhat congratulatory of the yellow card scheme, despite the substantial under-reporting noted in the "Panorama" programme and the associated papers by Social Audit. I welcome the NHS Direct innovation, but we must go further. Will the Minister confirm that the MHRA and the Committee on Safety of Medicines will be encouraged to seek direct patient experience, not simply via health professionals, and that that experience will be taken on board in the committee's review of SSRI drugs such as Seroxat?

Baroness Andrews: My Lords, in response to the first point, the yellow card system has been tried and tested over many years. It serves as the model for other countries and is recognised to be the best of its kind. One should not confuse under-reporting with ineffective reporting. One does not want to report every adverse reaction. But, through the yellow card system, we pick up the reactions that we need to know about so that we can do enough about them. In recent years, the number of people who can make adverse reports has expanded; for example, nurses can now do so. We welcome that.
	On the second point, the Committee on Safety of Medicines has set up an expert working group, which will look at the safety of Seroxat. It has received the patient reports generated by the "Panorama" programme. It will look at protocols on how best to evaluate the evidence, which it will take extremely seriously. It will look at what needs to be done potentially to improve the leafleting. It will test those improvements with a user panel. Sir Gordon Duff, who chairs the CSM, is extremely anxious to do that.

Lord Winston: My Lords, I declare an interest as the director of research and development at Hammersmith Hospitals NHS Trust. Does the Minister not agree that Seroxat and the class of drugs that deal with serotonin in the brain are the most effective anti-depressants that we currently know? Seroxat has been in use for more than 12 years and is available in more than 100 countries where none of the side effects mentioned has been highlighted. The "Panorama" programme has not always been noted for its accuracy in other areas. It would be premature to condemn what is an extremely good drug. The side effects reported are those commonly reported in recovering depressive patients who are not taking the drug.

Baroness Andrews: My Lords, I can hardly improve on that description. Seroxat is an effective treatment for depression and anxiety disorders. Four million prescriptions are made every year in this country alone. We have a wealth of evidence from Europe and the United States that it is a safe and very effective drug. Nevertheless, we want to respond to the concerns raised in the "Panorama" programme. We do not want people suddenly to stop taking their medication. That is why the Committee on Safety of Medicines has set up an expert working group to see how it can address some of the issues as appropriately as possible.

Lord Naseby: My Lords, when the assessment has been made by the Committee on Safety of Medicines, will the Minister report it publicly? Many noble Lords believe that the yellow card system has worked extremely well over many years. As the noble Lord, Lord Winston, said, the "Panorama" programme does not quite have consistency of reporting.

Baroness Andrews: Yes, my Lords, we will certainly make the conclusions public. The most recent development of the yellow card system is its going online. That is being piloted in one area, and we will have the results in a few months. We hope that it will be a national initiative in the autumn. That will make it even easier for doctors, pharmacists and nurses to report. They may prefer to use the yellow card, which is very popular and very easy to use.

Lord Ashley of Stoke: My Lords, what evidence does my noble friend have for claiming that the yellow card system is one of the best in the world? My impression has been that under-reporting under the yellow card system was very serious.

Baroness Andrews: My Lords, there are two sorts of evidence. First, the system was picked up by other countries. They have not introduced it in its full capacity, but it has served as a model. Secondly, it has a proven track record of identifying safety issues. Let me give just one example: reports of sudden death in patients receiving the schizophrenia treatment Sertindole led to suspension of the product pending a full review. Sertindole has now been reintroduced under very controlled conditions. I could give the noble Lord several examples. I am very happy to write to him on both issues.

Earl Howe: My Lords, does the Minister agree that inquests do not generally take account of contributory factors such as drug treatment, and that there is no mechanism for collating information arising from inquests that might be in the public interest? Will the Government consider that?

Baroness Andrews: My Lords, I know that only one coroner's inquest has alluded to the drug as having been a potential factor in a suicide. I shall consider the serious issues raised by the noble Earl.

Olympics 2012: London Bid

Baroness Blackstone: My Lords, with the leave of the House, I shall repeat a Statement made in another place by my right honourable friend Tessa Jowell. The Statement is as follows:
	"I am delighted to be able to inform the House that, following discussion at Cabinet today, the Government have decided to give their wholehearted backing to a bid to host the Olympic Games and the Paralympics in London in 2012.
	"This morning, my right honourable friend the Prime Minister has telephoned Jacques Rogge, President of the IOC, to inform him of our decision. He has told Mr Rogge that the Government will back to the hilt the efforts of the BOA, to whom I would like to pay tribute, alongside the GLA, the LDA and, of course, the mayor and others.
	"The bid will be a huge stimulus for elite sport. Lottery investment in our athletes helped us to our best medal haul for decades at Sydney; a London bid allows us to build on that and raise standards and aspirations even higher.
	"But our Olympic bid will also rest on a growing commitment to grassroots sport. It will be central to our efforts to increase physical activity and identify, nurture and develop talent in our young athletes.
	"We want to harness the power of sport to inspire people and address some of the key issues our nation faces—health, social inclusion, educational motivation and fighting crime. We want to spread the benefits all around the country: promoting tourism and business for the whole of the UK; staging a four-year cultural festival; investing in community sports facilities to offer to visiting teams to prepare and train here; and holding the football competition, as part of the Games, and other events outside London.
	"I warmly welcome the pledge from all parties to support the bid. That cross-party support is important because it gives us the very best chance of winning and of making the games a resounding success.
	"I have previously set out for the House four tests which an Olympic bid would have to meet before the Government could agree to give their backing. Those tests were: can we afford it, can we win, can we deliver a strong bid and a high quality games, and what legacy would a games leave behind?
	"We have spent the last few months applying those tests rigorously. I believe on the basis of thorough scrutiny, that a London bid passes those tests on every count. I would like very briefly to take the House through each one.
	"First, the cost. We estimate the cost of bidding will be in the region of £17 million. Business, the LDA and government will bear that cost. If we win a bid, the cost of the Olympics should be borne at least in part by those who would benefit most. So I have agreed with the Mayor of London a funding package of £2.375 billion, which includes a 50 per cent contingency. Of that, £875 million will be borne by London through a £20 increase in council tax for band D properties and a contribution of £250 million from the LDA.
	"But the biggest contribution comes from the lottery. Contributions from the existing sports lottery, and a new Olympics Lottery game would raise an estimated £1.5 billion. We will review the package in 2005 in the light of what by then will be firmer and more detailed estimates of the costs of staging the games.
	"The next test is whether we can win. Other confirmed bidders for 2012 include New York, Leipzig, Madrid and Havana. No doubt, others will emerge in the coming weeks. That is a strong field, but London has many advantages over these other cities, and our bid will be the equal of any.
	"The third test was whether a bid could really be delivered. As the jointly commissioned ARUP report shows, we can deliver a high quality and competitive bid based around an Olympic zone located in the Lee Valley.
	"Lastly, legacy. The games will bring great benefits to London. The economy will benefit; tourism will benefit; and the lower Lee Valley will benefit from new facilities and regeneration.
	"So the work starts now. I am perfectly realistic about the work involved and the risks that lie ahead. I know that public opinion will ebb and flow in favour of the project.
	"We will set up a dedicated organisation to develop and market the bid, with the very best people from both the public and private sector and with strong leadership. The bid team will act at arm's length from government. But all of us will pull out all the stops to bring the Olympic Games to London. 2012 is a prize well worth the fight and is also the diamond jubilee year of Her Majesty the Queen.
	"We are bidding because we believe it will be good for sport, good for London and good for the whole of the UK. It is a declaration that we are proud of our country and confident of our ability.
	"London is bidding for the Olympic Games. We believe it should host the greatest games on earth. Now we have two years to prove to the world that we deserve to be given that chance".
	My Lords, that concludes the Statement.

Lord Glentoran: My Lords, before responding to the noble Baroness, I must declare an interest. I am still a member of the Millennium Commission, which is chaired by the Secretary of State, Tessa Jowell.
	First, for those of your Lordships who remember the debate in December, it goes without saying that I am delighted to stand here thanking the Minister for the Statement and congratulating the Government. They already know that they have this party's support in making the decision. I welcome the decision, per se, but I welcome one part in particular. The Minister said:
	"We will set up a dedicated organisation to develop and market the bid, with the very best people from both the public and private sector and with strong leadership. The bid team will act at arm's length from government".
	I believe that I said in December that that would be vital. I still believe that it is vital. The only way that the Government and the nation will win is with a brilliant, charismatic, highly intelligent and highly experienced leader.
	There are several questions that I wish to ask, but I must make one more point. It is important to the nation that the Government as a whole are seen to support the bid. The Minister's Statement must be followed quickly and backed up by both the Prime Minister and the Treasury and the Chancellor. Given the way that life is in the press these days, we need to see that the whole of government—policy and money—is behind the bid. The Commonwealth Games was a great success that followed one or two failures. Let us hope that failure in sporting events are in the past.
	The first phase of the project is to sell London to the Olympic movement world-wide—the small nations, as well as the large ones. Huge attention to detail will be required to win the bid. Will the noble Baroness say when she hopes to announce the bid leader, the person who will lead the team, and how he or she will be selected?
	To be successful, the bid must be supported nationally. For that to happen, the public must have a sound and transparent understanding of the costings and, more important, the expected return and the legacy. Those of us who have been involved in Olympic Games know that that is where the money goes. Olympic villages serve their city well for many years after those games are forgotten.
	Although I support the use of lottery money, I would like the noble Baroness to explain the likely effect on current lottery beneficiaries. A successful Olympic bid will benefit the whole country. I also said that in December.
	Can the Minister explain how the £20 increase in council tax was arrived at? Is it a one-off flat rate? It is important for everybody to understand that the method of paying for the Games is fair. Can the Minister furthermore explain where the democratic accountability comes from for this £20 and how? Do the Government consider that London Transport is adequate for the job, or will be? Do they believe that a London Olympics is feasible without the completion of Crossrail?
	I realise that these are serious questions. So often on these occasions the devil is in the detail. I sincerely hope that we, as a nation, have the capability to sort out the detail to get a superb bid and win.

Lord Addington: My Lords, first, I congratulate the Government on taking this step. This bid is what the country deserves and, indeed, what the capital deserves. We have already had the arguments and it must be the capital, but Manchester has shown the way forward in staging the Commonwealth Games. I was lucky enough to attend part of the games. If the huge benefit to that city and the feeling of goodwill generated could be replicated and expanded on for London, that would bring immense benefits to the whole country.
	The noble Lord, Lord Glentoran, and I seem to be singing from the same hymn sheet. Therefore, I shall not take long with the rest of my remarks. However, I shall begin at the point where the noble Lord finished. Crossrail and, indeed, the entire transport infrastructure are vital to the success of the bid and this is an area where the Government must take the lead. The noble Lord rightly spoke about the Olympic bid being run independently of government, but that cannot be said of the transport infrastructure. The Government must lead, be seen to lead and must make a public commitment that everything will be in place.
	One of the problems and fears raised by people not so keen on the idea of bidding for the Olympics is lottery money being transferred away from existing projects. Can the Government give an assurance that although they will undoubtedly be planning to co-ordinate projects around the Olympic bid, they will make a conscious effort not to sacrifice the smaller community-based sports initiatives which are so vital to public health and for public participation in supporting a successful Olympic Games? The inspiration of elite athletes will come to nothing if we do not have the infrastructure for youngsters to train to become competent athletes. The Government should state clearly and boldly that this is the case. There is a danger that we could have a wonderful games, and then nothing more. That would be a major flaw in the scheme.
	Finally, provided that the Government have the will to push forward the bid, we shall give our wholehearted support. But, as the noble Lord, Lord Glentoran, said, we must ensure that the details are correct and that government leadership is unified, loud and does not leave any room for doubt. It is in the detail, and lots of it, for the devil has a lot of room to get in.

Baroness Blackstone: My Lords, I am enormously grateful for the support from both Front Benches for the Government's decision to bid for the Olympic Games in 2012. I hope that I can give both Front Bench spokesmen, and that they can accept, the reassurance that the Government are completely behind this bid. There should be no doubt about that. The Government have taken a little while to decide because they have carefully gone through all the pros and cons. They have thought about this deeply. They have done as much preliminary investigation as could possibly have been expected prior to making a decision. Having done that, we shall give the bid our wholehearted and complete support and will be enormously grateful for support from right across your Lordships' House.
	I should like to add that the Prime Minister has already spoken to the President of the International Olympic Committee and has stated just how passionately he will be supporting this bid. I am also grateful for the support of the noble Lord, Lord Glentoran, for the structure that we are putting in place to support the bid with an independent group of people working at arm's length from the Government. I hope, as does the noble Lord, Lord Glentoran, that the bid will be led by someone of enormous quality, with a team behind him or her also of the highest quality. We hope that we shall be able to announce the name of the bid leader within a few weeks and certainly by late June or early July.
	Questions were asked by both Front Bench spokesmen about transport. Of course, they are right to raise these questions. It is vitally important that we have a transport infrastructure in place that can deliver what is needed to host such an enormous event. I should like to make it absolutely clear that we shall be able to do this without the completion of Crossrail. We could not give a guarantee that that would be completed by 2012, but a number of other improvements will be made to London Transport. These include improvements to Stratford and Bromley-le-Bow stations, a dedicated road from central London to the stadium and significant enhancement of links to motorways. I believe that with the investment already planned, we shall see sufficient improvement in the transport system of London to ensure that adequate transport is in place to transfer people to and from the stadium and elsewhere.
	The noble Lord, Lord Glentoran, asked about lottery money. We are absolutely clear that there will be a new lottery game. Given the very high support for an Olympics bid—polls have indicated that more than 80 per cent of the population are strongly in favour of a bid—I imagine a new lottery game will produce substantial amounts of money. It is, of course, the case that there will be some switching from support of existing lottery schemes. The current estimates suggest that up to 2009, that switch could lead to an approximately 4 per cent reduction in money for other good causes. After 2009, it might lead to a somewhat higher 11 per cent reduction in support for other good causes. Of course, at present, these can be only estimates.
	The noble Lord, Lord Glentoran, asked about council tax. That is a matter for the Mayor of London, who is, indeed, elected. I know that he will want to explain to the people of London the very many benefits that the Olympics would bring the capital in terms of improvements to its infrastructure and the creation of up to 5,000 new jobs. I suspect that on learning of the large number of benefits that will derive from the Olympics, the people of London will be willing to pay a small amount more, which amounts to about a 2.2 per cent increase for band D council tax payers.
	The noble Lord, Lord Addington, rightly pointed out that Manchester had shown the way forward. As he said, there was a huge amount of goodwill in Manchester for the Commonwealth Games. I believe that we shall see that goodwill in London, too, should the bid be successful. However, I believe that there will also be goodwill from the whole country. The noble Lord asked for an assurance that small community-based sport would not suffer as a result of the bid. I should like to reassure him that the impact on grass roots sport will not be negative; it will be positive. There is no question of any wish to reduce available support. Indeed, the Government hope that a decision to bid for the Olympics will encourage more people to participate in grass roots sport with all the benefits that that gives rise to. I think that I have answered all the questions raised by the Front Bench spokesmen.

Lord Jopling: My Lords, I regret to say that I speak as one who will not shed a tear if the bid fails. Can the Minister explain why it is wise to spend a lot of money on a bid when, given the politics of the matter, it is most unlikely that two out of the next three Olympic Games will be held in Europe?
	Does the Minister recall an answer that she gave to me on 27th February in which she pointed out that the 1972, 1980, 1984 and 1996 Olympic Games were bedevilled by bloodshed and boycott? Can she say how much has been put into the contingency sum to deal with such matters, which, as she made clear in her answer, the Government fully recognise?

Baroness Blackstone: My Lords, I disagree with the initial statement of the noble Lord, Lord Jopling, that he hopes that the UK will not win the bid. I hope that he is in a small minority in the House in taking that view.
	As to whether our chances of winning the bid will be diminished because the next games are to be held in Athens, I do not believe that to be the case. The following games, in 2008, will be held in Beijing. I do not believe that the principle of different parts of the world taking turns to stage the games any longer applies. Europe will have a reasonably good chance.
	As to security, it is of course vital in preparing for an event of this kind that everything possible is done to minimise the security risks. Certainly substantial commitments will be made, and extra funding applied, to achieve that objective. At this stage I cannot say how much that will be, but, once we have won the bid, we will have a more detailed prospectus of how the games will be costed.

Baroness Thomas of Walliswood: My Lords, I agree with the Government in supporting the bid and I am gratified that they have decided to do so. On the other hand, I regret the Minister's attitude towards Crossrail. Will she think again on this matter because without a solid public transport route into London from the north-west and the west we shall not be able to get the right number of people into the stadium.
	A spectacular link is being formed already by the Channel Tunnel rail link, which is on course to be finished by the time the Olympics take place. I urge the Minister to talk to her government colleagues and to think again about Crossrail. In particular, I urge the Government to consider doing for Crossrail what they did for the Channel Tunnel rail link—namely, to guarantee loans. It was that security which enabled that huge project—which is much bigger than Crossrail—to go ahead.

Baroness Blackstone: My Lords, I am grateful to the noble Baroness for her support for the bid. I cannot give her the guarantee she is asking for in regard to Crossrail. An enormous amount of thought has been given to whether Crossrail could be completed by 2012; the answer is that it cannot be. The amount of preliminary work that still has to be done to make it happen is simply too great. It would be foolish to make a promise and a commitment to achieving it and then to find in 2010 that it will not be ready for the Olympic Games.
	It is better to focus on improvements to other parts of the transport infrastructure in London to ensure that, as the noble Baroness rightly said, people can get not only to the stadium in Stratford—if that is where it is going to be—but to events elsewhere in London. Modernisation and increased capacity on the Jubilee Line will be completed by then; the Channel Tunnel rail link, including the international facilities at Stratford, will be completed; and the Docklands Light Railway extension to City airport will also be completed. They are but three important examples of the way in which we are committed to ensuring that transport in London is significantly improved in order to support the bid.

Baroness Billingham: My Lords, this is the most wonderful news. I welcome it. If I could still manage cartwheels I would turn a couple in the Lobby. It is tremendously good news. As the noble Lord, Lord Glentoran, said, we had a fantastically positive debate on the issue. It is good to see that a number of noble Lords who took part in that debate are in their places today.
	The Minister said that the Lee Valley would be the principal venue for the games. However, I understand that other aspects of the games will be hived off to other parts of London and to outside venues. That is very important because we want to share the good news. I know that it is early days, but can the Minister give the House further information on that aspect?

Baroness Blackstone: My Lords, I am grateful to my noble friend for her welcome. Perhaps we shall see her playing in a veterans' tennis game at Wimbledon. We should perhaps introduce a special veterans' section into the Olympics. This would enable a number of Members of your Lordships' House to take part. The noble Lord, Lord Glentoran, could participate in the bobsleigh; the noble Lord, Lord Higgins, could run; and the noble Lord, Lord Addington, can certainly play rugby—although, unfortunately, it is not an Olympics event.
	It is intended that the athletics stadium, the athletics village, the aquatic centre and the media centre will be located in the southern end of the Lee Valley in the Stratford/east Hackney area. Although I cannot give any precise decisions—they have not as yet been made—events will take place in other parts of London and elsewhere in the country. Football will take place right across the UK as well as at Wembley and shooting will take place at Bisley. The assessment carried out by ARUP looked at the possibility of hockey being staged at the Charlton football club; the modern pentathlon at Crystal Palace; rowing at Enfield; tennis at Wimbledon; and so on. So there will be activities all over London and elsewhere in the country, not only in the East End.

Lord Higgins: My Lords, as it is well over half a century since I took part in the last London Olympics I certainly agree that it is time London put in another bid. Does the Minister agree that while it is true that what is important in the Olympic Games is not the winning but the taking part, that is a view best taken after the event rather than before and we should go into the bid with great determination to win?
	More specifically, does she agree that, following the Pickett's Lock affair and the decision not to have a permanent athletics track in Manchester, it is a scandal that we still have no full-sized British athletics stadium? As an indication of our determination on this bid, should we not proceed with such a structure at the earliest possible moment?

Baroness Blackstone: My Lords, yet again, I greatly appreciate the welcome given by the noble Lord. It is particularly appropriate to thank him as someone who took part in the 1948 Olympic Games. As to the issue of a new athletics stadium, it is unlikely that the Government will commit to one at this stage. Our efforts should be focused on the Olympic stadium, which will of course be primarily for athletics.

Lord Faulkner of Worcester: My Lords, my noble friend will recall that when we debated the Olympics on 18th December on the Motion of the noble Lord, Lord Moynihan, there were 14 speakers, one of whom was herself. The other 13 noble Lords who took part in the debate were unanimously in favour of the British Government making a bid for the London Olympics of 2012. So there will be very widespread support for the decision that she has announced today.
	In response to the noble Lord, Lord Jopling, who says we have not got a hope, I think many people will reject that view. They should ponder the words of Mr. Rogge when he was interviewed by the Evening Standard in December. He said:
	"I would be very happy to have a well prepared, well-organised London bid. Definitely London would be a front runner, given a good technical file. There is no doubt about that. But Government backing is a vital determining factor".
	The fact that we now have government backing, which is clear and wholehearted, makes the case very strong indeed.
	I wish to ask my noble friend about the legacy, a subject I raised in the debate on 18th December. Can she confirm that it remains the Government's intention that the Olympic village will become affordable housing in a part of London where there is clearly a great need for housing of that sort for young professional people who find property prices in the South East prohibitive? Can she say anything about the thinking for the future of the stadium which will be built there? One of the successes of the Commonwealth Games bid in Manchester is the fact that the stadium is to become the new home of Manchester City next season. Can some similar arrangement be put in place for an Olympic stadium in the east so that it has a long life and does not become a white elephant?

Baroness Blackstone: My Lords, I well remember the debate that took place last year when every speaker spoke strongly in favour of an Olympic bid. We listened to the debate. I can confirm that the Olympic village will provide 4,000 extra affordable houses for people in the East End of London.
	On the future of the stadium, my right honourable friend the Secretary of State and my right honourable friend the Minister for Sport have spent quite a lot of time over the last six months travelling to the venues of previous Olympic Games in recent years and those where they are going to take place to see what lessons we can learn with respect to the legacy so far as stadia are concerned. One of the advantages this bid will have is that the stadium will be right in the centre of a huge city, unlike Sydney, where the stadium is some way away. It has therefore proved much more difficult to use it, and use it on a regular basis. So we take the legacy issue very seriously.

Lord King of Bridgwater: My Lords, I declare an interest as the chairman of the ExCeL exhibition centre at the Royal Victoria Docks and add our name to the people pledging full support for this Olympic bid. Mindful of what the noble Lord, Lord Faulkner, said, and the experience, following the World Cup, of Japan, which appeared to be left with a large number of white elephants, as the great stadia it had built were of no further use afterwards, it is obviously extremely important from the point of view of value for money that we see a positive benefit in low-cost, affordable housing and particularly in transport.
	In that connection, the Minister's answer regarding Crossrail is extremely disappointing. She will not stand up and pledge herself to that; it is a lot of money and many Ministers will be listening to what she says. But it is critical for London, irrespective of the Olympics, to have better communications, and this must be the opportunity. If we do not do that, I think it will seriously prejudice our chances on the bid.

Baroness Blackstone: My Lords, perhaps I should have mentioned that ExCeL, on whose board the noble Lord, Lord King, sits, may well be one of the venues used for a London Olympics for badminton and 10 or 12 other Olympic sports. I hope that the noble Lord welcomes that.
	I do not have anything to add to what I have said about Crossrail, but I accept the importance of trying to create an improved infrastructure and regeneration through this bid. I believe that a very large area of east London, which has been a pretty miserable brownfield site for a very long time, will be greatly improved as a result of the investment that the bid will lead to.

The Lord Bishop of Manchester: My Lords, does the Minister feel that London will have the graciousness and humility to seek at least a little advice from Manchester on how to do these things successfully? In particular, can she give an assurance that those who were involved in the organisation of those games are already associated with what is happening over the London bid?

Baroness Blackstone: My Lords, I am all in favour of both graciousness and humility. Speaking as a Londoner, we should never be anything other than gracious and we should certainly take into account the successes of other cities around the country. As I said in answer to the noble Lord, Lord Addington, Manchester and the Commonwealth Games was an object lesson on how to go about a project of this sort. We are certainly involving people who were key to that enormous success and will get advice from them in pursuing the London bid.

Lord Monson: My Lords, may I press the noble Baroness further on the prospective council tax increase if the bid is successful? Is the 2.2 per cent increase for band D payers that she mentioned a one-off, as the noble Lord, Lord Glentoran, asked, or will it be levied year after year over a number of years?
	On a totally different note, will small-bore pistol shooting once again be permitted, or will that event have to take place on the Isle of Man or even on the continent?

Baroness Blackstone: My Lords, the extra council tax will be levied each year—it is not just a one-off, one-year requirement. But, as I said earlier, there will be huge benefits to London from hosting the Olympics. I did not mention tourism, for example. It will help people in a range of industries and will benefit their employees as well as people who run tourist attractions of one kind or another. I cannot answer the noble Lord's question on small-bore pistols. I am extremely sorry about that; I shall write to him.

Lord Clinton-Davis: My Lords, I am delighted to speak for Hackney on this occasion, because I am Lord Clinton-Davis of Hackney. Will my noble friend tell the House what discussions are envisaged between the Government and the London borough of Hackney regarding this matter? Is she aware that transport links as far as Hackney is concerned are absolutely appalling?

Baroness Blackstone: My Lords, my noble friend is Lord Clinton-Davis of Hackney; I am Baroness Blackstone of Stoke Newington, which is part of the London borough of Hackney, so I share his interest. I accept that a great deal needs to be done to improve transport links from some parts of Hackney to the rest of London, but a successful Olympic bid would achieve just that. I am sure that those who are involved in taking this bid further will be having extensive talks with not just the GLA but all the London boroughs involved.

Baroness Pitkeathley: My Lords, I join in the general rejoicing, but as chair of the largest of the good cause lottery distributors, your Lordships will perhaps understand that I am a little less enthusiastic about the proposal, particularly in view of what my noble friend said about the lessening of the lottery receipts. Can she give a further assurance that in the understandable commitment to winning which goes with the Olympic Games or even a bid for the Olympic Games, the Government will not lose sight of the extremely important part which school and community sport play in society and the huge contribution being made by the New Opportunities Fund, together with my colleagues in Sport England?

Baroness Blackstone: My Lords, we remain committed to the development of grass-roots sport. As I said in response to the noble Lord, Lord Addington, our decision to bid to host the games will not divert any of our attention or our funding away from this terribly important area. I hope that my noble friend will reassure others with whom I know she is in touch who benefit from lottery funding for community sports facilities that the Government are absolutely committed to making sure that all young people and, indeed, all adults who want to participate in sport are able to do so and that the facilities for them are improved.

Communications Bill

House again in Committee.
	Clause 16 [Membership etc. of the Consumer Panel]:

Baroness Wilcox: moved Amendment No. 71:
	Page 18, line 19, leave out from "by" to end of line 22 and insert "the Secretary of State, acting with the advice of OFCOM, and shall comprise a chairman and such other members as the Secretary of State may determine"

Baroness Wilcox: Amendments Nos. 71, 73, and 75 are intended to secure the independence of the consumer panel. They do this by making the Secretary of State responsible for making appointments to the panel, while Ofcom plays only an advisory role. That is in contrast to the Bill as it currently stands, whereby Ofcom appoints the members of the consumer panel and the Secretary of State is able to perform only a blocking role.
	The amendment has the support of the National Consumer Council, which points out that in order to do its job properly and be able to fight the corner for consumers, the consumer panel must be truly independent of Ofcom. There can be no doubt that circumstances will arise when the opinions of the consumer panel and Ofcom are at odds with each other. In that event, it is vital that proper procedure is followed, without any underlying pressures, whether intended or not, as a result of the role Ofcom plays in appointing the consumer panel.
	This debate is highly revealing about how Her Majesty's Government see the relationship between Ofcom and the consumer panel. Will the Minister explain whether the Government want the consumer panel to be independent of Ofcom? If not, how can the consumer panel be expected to do its job properly? If so, do the Government agree that an important way to secure this independence would be to remove Ofcom's power to play such a central role in the appointment of the consumer panel?
	We received no explanation from Dr Kim Howells on the issue during Committee stage in another place, so I am extremely keen to hear the Minister's response now. I beg to move.

Lord Borrie: Clearly, there is no point in having a consumer panel at all unless it is independent of both government and Ofcom. Nor is there any point in having a consumer panel unless it is widely representative, although I do not favour members being representative of any particular consumer group or organisation, let alone the risk of being mandated by them.
	The consumer panel is intended to be an advisory body. I feel sure that Ofcom would see no point in having a body that was in any way a replica of itself or not independent of itself. Its value as an advisory body surely depends on its members being free spirits, forthright and outspoken. It also needs to be well resourced, so as to act as an adequate counterweight to the advice that will undoubtedly come on so many matters from well-heeled and well-resourced parts of the corporate sector.
	The amendment has extremely good intentions. It emphasises that the consumer panel should be independent of Ofcom, but I do not believe it to be necessary. It is unnecessary that the Secretary of State rather than Ofcom should make the appointments. Indeed, if the Secretary of State did make the appointments, it might elevate the role of the consumer panel in the minds of the public as if it were a rival to Ofcom, rather than an advisory body. It is Ofcom that in so many circumstances will have to judge the public interest. It is right that appointments to the consumer panel should be made by Ofcom, subject to the approval of the Secretary of State.

Viscount Falkland: I rise to support many of the remarks made by the noble Baroness, Lady Wilcox, and, particularly, the remarks of the noble Lord, Lord Borrie, about the appointment by Ofcom. We on these Benches support that view absolutely.

Lord McIntosh of Haringey: The noble Baroness, Lady Wilcox, is entirely right in what she said at the very beginning. The crucial point is the independence of the panel. I shall set out a number of ways in which that is achieved, of which the appointments process is only one part—but even that is not the whole story.
	First, the panel is a legally separate unincorporated body, which will be operationally independent of Ofcom. Secondly, Ofcom is required to ensure that the consumer panel is able to fulfil its remit effectively—in other words, that the resources will be there for it. Thirdly, the consumer panel will be able to formulate its annual work plan and will be responsible for allocating its own resources. Fourthly, we expect that the consumer panel will have a memorandum of understanding with Ofcom, which will set out the relationship with sufficient clarity.
	Fifthly, we believe it important that the panel should report independently on its work, and I have already indicated my support for a report along the lines of that which is proposed in Amendment No. 80. We are considering an amendment to the Bill to give that effect. Sixthly, we have included provisions in the Bill for the consumer panel to establish its own advisory committee and to determine its procedures. The seventh item in the package is that we have provided that no member or employee of Ofcom can be a member of the consumer panel. Finally, Ofcom must explain the reasons why it might not accept the advice given to it by the consumer panel.
	Added to all of that is the very considerable safeguard of appointments to, and removals from, the panel requiring the approval of the Secretary of State. The amendments would make the Secretary of State directly responsible for appointments to the panel, which would alter the whole dynamic of the relationship that we want between Ofcom and the consumer panel. The noble Baroness, Lady Wilcox, was too polite to say so, but some people believe that the Secretary of State will merely rubber stamp the appointments. That is not my experience of the way in which Secretaries of State work.
	There are two possible models from previous experience. The first is that of Postwatch or Energywatch. We are not saying that those bodies are not right for their own sector, but they have a different role from the Ofcom consumer panel. After all, they have a particular responsibility for dealing with complaints from consumers, which is not the role of the consumer panel.
	We believe it to be much more appropriate to consider the other model, the Financial Services Authority consumer panel, which is appointed by the Financial Services Authority with the approval of the Secretary of State. That model is working well, and is more analogous to the model that we want for the consumer panel to Ofcom. We hope that the noble Baroness will recognise that that is the correct relationship, as the noble Lord, Lord Borrie, indicated from his own experience.

Baroness Wilcox: I thank the Minister, who always takes time and care in his replies, especially when talking to me about consumer issues, because he knows that I was chairman of the National Consumer Council and am president of the National Federation of Consumer Groups and the Institute of Trading Standards Administration. I thank him for his kindness in taking care to explain matters to me.
	I am grateful, too, to the noble Lord, Lord Borrie, with whom I had a very good relationship when he was Director-General of Fair Trading for some 11 years.
	I am a little confused by the noble Viscount, Lord Falkland, who very kindly agreed with me and then very kindly agreed with the noble Lord, Lord Borrie. Given that the noble Lord was disagreeing with me, I am not sure whether I should thank the noble Viscount for agreeing with me.

Viscount Falkland: I was agreeing with the noble Baroness's general comments and I was agreeing with the particular point made by the noble Lord, Lord Borrie, that the appointment should be made by Ofcom rather than the Secretary of State. I did not explain that in detail in order to speed up the Bill. Now that I have had to have an extra word, I have failed in that aim.

Baroness Wilcox: I am grateful to the noble Viscount although I am still confused.
	My experience on one of the bodies which the Minister did not mention—the Gas Consumers Council, a very independently appointed body—is that there is great variety in the way that advisory panels work. My concern, and perhaps that of the National Consumer Council—I shall go back to it, and I shall also think again—is that the Bill covers such an enormous body of work. We are discussing a regulator to beat all regulators. The Bill covers such an enormous area. I am still nervous that it will be difficult to criticise those who appoint a body if one's own next appointment depends on them. I am still uncomfortable about that. I shall re-consult, but I reserve the right to return to the point at a later stage. Meanwhile, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Puttnam: moved Amendment No. 72:
	Page 18, line 19, leave out from "by" to end of line 22 and insert "the Secretary of State, acting with the advice of OFCOM.
	( ) The chairman of the Consumer Panel shall be chosen by the Panel from among their members."

Lord Puttnam: In moving Amendment No. 72 I shall also speak to Amendments Nos. 76 and 77. I should like to say first, however, that I completely share the confusion of the noble Baroness, Lady Wilcox. As I understand it, the noble Viscount, Lord Falkland, was disagreeing with an amendment that stands in my name and that of the noble Lord, Lord McNally. However, I am sure that they will sort that out over tea.
	I also share the noble Baroness's concern that there is a problem here that is not being properly bottomed-out. I can deal with it quite briefly. I think that the Government have to understand that there is genuine and, to an extent, legitimate anxiety among consumer groups that they are being asked to rely tremendously on the good will of the consumer panel. They are being asked to rely on the fact that the chairman appointed over them, their leader, will be appointed from elsewhere. They are being denied the opportunity to publish or influence the activities of Ofcom. As I said earlier, I should think that it is in the Government's interest to bend over backwards to allay those anxieties. One means of doing so is to allow the consumer panel, as we are suggesting, to appoint its own chair. The other way of doing it would be to give the panel as much flexibility as possible in the way in which it works.
	I may have misunderstood the noble Lord, Lord McIntosh. He may already have agreed to a suggestion which we made and to which the Government seemed sympathetic in their response. Page 6 of the response states:
	"We agree, however, that the Panel should be able to determine any committees of the Panel and we are considering whether any amendment is necessary to the current draft of the Bill to permit this".
	As I understand it, the noble Lord is saying that the Government have conceded that small but possibly—who knows?—important extra favour. I reiterate, however, that it is in the Government's interest to allay the fears of the consumer panel, and to ensure that the panel has the best possible relationship with the content board and that there is as much transparency as possible between the two. I beg to move.

Lord McIntosh of Haringey: I can certainly confirm what the noble Lord, Lord Puttnam, has just said: there is no restriction on the consumer panel appointing any committees that it wishes. However, I do not think that that needs to be on the face of the Bill. There is no way in which it could be ruled out. As he says, it is a minor but perhaps not unimportant matter.
	I should like to reinforce what I have just said to the noble Baroness, Lady Wilcox, about the independence of the panel. I have one or two more examples of the panel's independence which I failed to give in response to her in addition to the most important fundamental fact—that the panel is a legally separate unincorporated body and operationally independent of Ofcom. The point that I could have made to the noble Baroness and now make in response to Amendment No. 72 is that the panel does have independence of thought. It has the power to commission and publish its own research. It is able to give advice not only to Ofcom but to other bodies as well. For example, it might wish to advise the Office of Fair Trading. It might wish to take part in the formulation of European legislation by giving advice to European institutions. It might want to give advice to government departments or to the self-regulators who are provided for in this legislation such as ICSTIS.
	It is not just that Ofcom has to receive the advice from the panel; it has to consider it. Where appropriate, it must have regard to the advice and the results of the research that the panel has notified Ofcom about. If Ofcom chooses not to follow the advice, it has to give the panel reasons for disagreeing, and it has to ensure that those who are aware of the panel's advice will also be informed of the reasons. Those are important measures for ensuring the independence of the consumer panel from Ofcom.
	I turn to the amendments themselves. The combined effect of this group of amendments is not quite the same but similar to that of the previous group. It would make the Secretary of State responsible for appointing the members of the consumer panel. Amendment No. 72 would have the additional effect of making the members of the consumer panel responsible for choosing their own chairman from among their membership. As we agree with the need to ensure the independence of the panel, we think that the measures we have included in the Bill provide for it.
	As I said in response to the previous group of amendments, we think that although there is an analogy with Energywatch and Postwatch, for example, those bodies—which are separate non-departmental public bodies with their own legal identity and their own secretariats and staff—are different in that they have significant complaint-handling responsibilities with which the Ofcom consumer panel will not have to deal. I note what the noble Baroness, Lady Wilcox, says about the Gas Consumers Council. I am afraid that I am a little out of date as it is more than 20 years since my wife was chairman of the National Gas Consumers Council. That certainly was a separate body, with its own staff and secretariat and indeed regional structure. In terms of the volume of its work, it was, of course, primarily a complaints-handling body. However, that is not the model that we are looking for here. As I said, we are looking for a model closer to the FSA Consumer Panel. The members of the panel are appointed by the FSA although the chairman's appointment is subject to the approval of the Treasury.
	We are going further than that in the Bill. We are providing that the Secretary of State has oversight over the appointment and the removal of all of the members of the consumer panel. Those appointments and removals are subject to the approval of the Secretary of State. So Ofcom cannot appoint anyone it pleases and cannot remove anyone of whom it disapproves. I think that that is the really important consideration. The difference between that and appointment by the Secretary of State is one really of comity between the consumer panel and Ofcom. The consumer panel is independent, but it will always be working closely with Ofcom. We think that the balance we have struck here is appropriate.
	As to the appointment of a chairman, members of the consumer panel will be chosen for the experience and expertise they can provide in specific areas; in other words, different members for different specific areas—a point which the noble Viscount, Lord Falkland, made this morning—such as consumer interests, disability interests, the opinions of particular localities and so on. The chairman of the consumer panel is required to carry out that role objectively and with neutrality. These are perhaps different qualities from those which are required of the regular members of the panel who represent different interests. There could be conflicts of interest if the members of the panel with specific interests were required—as Amendment No. 72 would require them—to appoint an impartial chairman.
	Under those circumstances we think that it is right that Ofcom should appoint a person who can bring to the post the necessary skills, can carry out the role of chairman free from any potential conflicting interests and, indeed, play a role in the appointment of the other members of the panel.
	I do not believe that the differences between us are earth shattering. We have thought the matter through carefully and I believe that we have achieved the right balance.

Lord Puttnam: I am perfectly comfortable with the Minister's response. As he says, the differences between us are not earth shattering. However, I suggest that the Government should be aware of the concerns and do all they can to address them. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	[Amendments Nos. 73 to 77 not moved.]
	Clause 16 agreed to.
	Clause 17 [Committees and other procedure of the Consumer Panel]:
	[Amendments Nos. 78 to 80 not moved.]
	Clause 17 agreed to.
	Clauses 18 to 22 agreed to.
	Clause 23 [Publication of information and advice for consumers etc.]:
	[Amendment No. 81 not moved.]
	Clause 23 agreed to.
	Clause 24 [Training and equality of opportunity]:

Lord Gordon of Strathblane: moved Amendment No. 82:
	Page 23, line 6, after "providing" insert "telecommunications,"

Lord Gordon of Strathblane: The whole purpose of the Bill is to bring together the regulation of broadcasting, telecommunications and some ancillary activities. It therefore seems strange to make provision in Clause 24(1) for training for broadcasting but say nothing about telecommunications. My amendment seeks to remedy that omission by the simple insertion of the word "telecommunications". Other amendments in the group are more specific with regard to other matters. I am not worried about that. I invite the Government either to accept the amendment or, if they feel that it is not sufficiently all- encompassing, to introduce their own amendment which is. I beg to move.

Baroness Buscombe: I wish to speak to Amendments Nos. 83 and 84, which stand in my name. I wish to speak also in support of Amendments Nos. 85 and 86. My amendments are very similar to that of the noble Lord, Lord Gordon of Strathblane, except that they seek to insert the words "telecommunications, internet". We consider that that term is all the more encompassing in terms of what the Bill should cover.
	We all recognise the importance of the development of opportunities for training and retraining, particularly for employment in an industry as fast moving as broadcasting. I feel, however, that training and retraining in telecommunications skills and the Internet are as important as training in television and radio services. We should like to know, therefore, whether the Government consider that training in those broader areas is relevant.
	There is another purpose behind the amendments, however. How will Ofcom decide what form of training is appropriate in such a diverse industry? Will the Minister explain how Ofcom will be in a position to decide what constitutes an appropriate level of training at any one time? Training strategies can be very specific to individual companies depending on the level and type of activity being undertaken and will depend to a large extent on a range of detailed factors which may be known only to the company concerned.
	There are now literally hundreds of channels in the broadcasting sector, including many specialised services dedicated to music, sport, ethnic minorities and so on, and new forms of broadcasting, including pay-per-view and interactive offerings. Is it the expectation that Ofcom will know best how to allocate the resources of the relevant companies for their training needs and for the training needs of other very different players in the industry? Would Ofcom be empowered to dictate the training budget of, say, the shopping channel, QVC, or the documentary broadcaster, Discovery, or to transfer resources from one to another, for example, to fund training for other broadcasters' news or drama productions? We would appreciate some clarification from the Minister on that.
	I turn to Amendment No. 85, in the names of the noble Lords, Lord Puttnam, Lord McNally, Lord Crickhowell and Lord Hussey. We understand that the clause requires Ofcom, inter alia, to take all such steps as it considers appropriate for promoting equality of opportunity in relation to employment by those providing television and radio services and the training and retraining of persons for such employment. This reference to equality of opportunity refers to equality of opportunity between men and women and between persons of different racial groups. Subsections (6) and (7) would give the Secretary of State power to add any other form of equality of opportunity which he considers appropriate by affirmative resolution.
	I have read the memorandum of the House of Lords Select Committee on Delegated Powers and Regulatory Reform, to be found in annex 6 of the report of the Joint Committee on the draft communications Bill which records that the department says that the power to extend the clause to other forms of equality is intended to allow the clause to be brought into line with general equality law if it should be extended in the future; for example, to age or religious discrimination. The House of Lords Select Committee found that explanation unconvincing, as do we on this side of the Committee.
	At present, primary legislation would be required to extend equality law in the future. That legislation would and should have a clause making consequential amendments to previous Acts and one of those amendments would be an amendment to this clause extending its width so as to be consistent with that new legislation. If the primary legislation is passed extending equality law, it is almost inevitable that there will be a provision amending this clause which will stand or fall with that primary legislation.
	I cannot envisage any problem with that course. The explanation given by the department is, we believe, wholly unconvincing. I ask myself why. I have always been impressed by the ability of the civil servants in the department. I have no doubt that they will agree with me that the explanation is unconvincing. I am drawn to the inescapable conclusion that there is another agenda here. We should like to know whether the Secretary of State has plans to extend general equality law by resolutions of both Houses rather than by primary legislation. Those are specific points which we should like the Minister to answer. In particular, what are the Government's intentions with regard to extending general equality law?
	I turn to Amendment No. 86. I support the amendment in the name of the noble Lord, Lord Puttnam, in relation to backstop powers in respect of training. I refer specifically to support for the proposed new clause by Channel 4 which says that it welcomes,
	"the amendment in the name of Lord Puttnam and others to give OFCOM backstop powers to impose a training levy on broadcasters".
	I mention Channel 4 but a number of other stations have been in touch with us which very much support the amendment. Indeed, last night at the UK Film Council I was lucky enough to see a prescreening of the new film, "Nicholas Nickleby". That brought home to me the tremendous importance of skills and training in that field so that we can encourage more investment in this country's film industry. I refer to the calibre of the artists that we encourage. But we need to maintain that commitment to skills and training. We need resources and we need commitment from Ofcom.
	There is strong support for the proposed new clause. Channel 4 says that in its view it enhances rather than constrains commercial as well as creative effectiveness. In an industry so completely dependent on talent for its long-term success the surest way to make Britain's communications industry the most dynamic and competitive in the world—the ambition expressed by the two sponsoring Secretaries of State in their joint introduction to the policy paper accompanying the draft Bill—is to give real teeth to training obligations. At present a minority of broadcasters, one of them being Channel 4, bear a hugely disproportionate share of the training costs for the whole industry.
	We very much look forward to the Minister's response on the amendments.

Lord Carter: I tabled an amendment in the group. Amendment No. 270B deals with equal opportunities and the point raised by the noble Baroness, Lady Buscombe. Clause 330(1) deals with equality of opportunity between "men and women" and,
	"persons of different racial groups".
	That also picks up the wording of Clause 24. Clause 330(2) asks for the promotion of,
	"the fair treatment of disabled persons".
	Why the distinction between equal opportunity for men and women and persons of different racial groups, and only fair treatment for disabled persons? It would be helpful if we removed "fair treatment" and inserted "equality of opportunity", so that disabled people were on the same footing.
	That seemed to deal with the problem, but I then looked at the earlier draft Bill. Here the mystery rather deepens. Clause 224(1) of the draft Bill has the same preamble as the present Bill, but it has four paragraphs. Paragraphs (a) and (b) deal with men and women and persons of different racial groups, as in the present Bill, but paragraphs (c) and (d) have disappeared from the present draft. Paragraph (c) reads,
	"between disabled persons and persons who are not disabled".
	Paragraph (d)—it is the first time that I have seen the construction—reads,
	"between persons who have had disabilities and persons who are not disabled and have not had any disabilities".
	Therefore, in the draft Bill, equality of opportunity for disabled people was on all fours with gender and ethnicity. The draft Bill also included a subsection (2) that called for the fair treatment of disabled persons. In the present draft, equality of opportunity has disappeared from the first subsection and we are left with only fair treatment.
	There is an argument that "fair treatment" allows for positive discrimination. That may be so; one would wish to take advice on it. "Fair treatment" seems fairly subjective, whereas we all know what "equality of opportunity" means. It occurred to me to look at the draft Bill only yesterday, so I tabled an amendment this morning that is not on the Marshalled List. It will probably be reached next Thursday, not this afternoon, but it would restore to Clause 330(1) the words in the draft Bill.
	The Minister has an easy solution that would save the time of the Committee. We could restore "equality of opportunity" for disabled people in subsection (1) and leave subsection (2) with "fair treatment". That was exactly the wording in the draft Bill, and would mean that disabled people would have both equality of opportunity and, if necessary, the positive discrimination used in the arguments about fair treatment.

Baroness Darcy de Knayth: I would like to support the noble Lord. It is very important that we get the drafting right now. He will remember that, about 10 years ago, there was a Bill that removed people from committees if they had a physical or mental disability. The provision crept into every Bill. We spent years and years on it before we removed it in the end. I strongly support our getting the drafting clear now.

Lord Addington: I tabled Amendment No. 270A, which refers to,
	"persons of different age groups".
	When we are dealing with something such as the communications industry we should probably address age discrimination. The amendment was inspired by a letter sent to me via a colleague in another place, which suggested that someone retraining in the industry—it is an expanding industry, and if one is retraining one is by definition a littler older—felt that he was experiencing tremendous age discrimination. That was made all the more pertinent when I realised that he was only five years older than me.
	We really have to encourage the removal of age discrimination and ensure that it is taken seriously. I tabled the amendment, which is a probing amendment, to ask whether age discrimination is appropriate and whether action can be taken. The more substantive amendment to which I added my name is that spoken to by the noble Lord, Lord Carter.
	Like the noble Lord, I feel that "equality of opportunity" is understood. It is not subjective. "Fair treatment" will depend on where one is standing. In the past, it has led to some beneficial tokenism, but ultimately that will not serve as a legal test for someone with a disability who is having problems. "Equality of opportunity" is solid. It means the concept of reasonableness in the Disability Discrimination Act. It is something for which we are striving. I suggest that it must be included in the Bill, unless the Minister can give us a better legal definition of what being fairly treated means. If it is as subjective as it sounds, I suggest that it is far more trouble than it is worth and will ultimately have a negative impact.

Baroness Howe of Idlicote: I shall speak very briefly on Amendment No. 271A, as I have been asked to do by the noble Lord, Lord Crickhowell. It is a probing amendment, but before we get into that, I want to support wholeheartedly every single point that Members of the Committee have made previously, without repeating them. "Fair treatment" is not the same as "equal opportunity". We know what "equal opportunity" means; we recognise it, very much as we recognise "public service broadcasting". I shall put that on one side.
	Amendment No. 271A is a probing amendment. Its purpose is to ask the Minister to clarify a possible loophole in Clause 330, which aims to implement the Government's plan to make training and equal opportunities part of tier 1 regulation. Under subsections (5) to (7), the requirements apply to only television and radio licensees which employ more than 20 people. It is thought possible, therefore, that television and radio services in group ownership will not be caught by the requirement, as it is perfectly possible for most staff to be employed at group level rather than by the individual licensees.
	I should be most grateful if the Minister would address those concerns and clarify the situation as regards those licensees employing fewer than 20 people.

Lord Puttnam: I tabled Amendments Nos. 85 and 86, and I want to speak specifically to Amendment No. 86. I should start by declaring an interest as patron of Skillset, the industry's training organisation. Amendment No. 86 is interesting, and I am more delighted than I can easily say to have the support of the noble Baroness, Lady Buscombe.
	The noble Lord, Lord Baker of Dorking, was recently in his place, and it is worth mentioning that in 1985, when the industry was really on its uppers and he as a DTI Minister had extremely limited resources to help, he did a marvellous job in getting it to address its skills deficit. He did so by supporting the National Film and Television School and by a number of other very imaginative means. It is fair to say that the industry has been seriously skills-based ever since.
	The industry has managed, quite tortuously, to create what one might term an all-industry agreement on training, based on a voluntary levy. However, we live in the real world, and there are a number of backsliders, professional evaders and non-payers, which has bedevilled the industry. The industry training organisation puts an extraordinary amount of time, effort and energy into tracking down and attempting to get the most reluctant of those people to pay. The provision merely seeks to give some statutory power to Ofcom to deal with those who will not pay those sums of money which the industry as a whole has identified as being necessary to keep its skills base adequate. This is a timely amendment.
	Moreover, the amendment gives the Government a marvellous opportunity to put some flesh on the aspiration that is enunciated constantly by the Chancellor to do something about the skills deficit and the fact that employers must play their part. Here is a marvellous opportunity for the Government to say, "We support the industry. It has got its act together by creating its own voluntary levy. We will make as sure as we can that those within the industry who try to take advantage of the skills base but who do not pay for it are penalised".

Lord Thomson of Monifieth: I support the amendments spoken to by the noble Lord, Lord Gordon, and the noble Baroness, Lady Buscombe. I wish to speak in particular to speak to Amendments Nos. 85 and 86, as the noble Lord, Lord Puttnam, has just done.
	Clause 24 deals with two aspects of employment policy—the conventional issue of training and the question of positive action to prevent discrimination. Amendment No. 85 proposes to remove those parts of the clause that would take steps to promote equality of treatment at work, confine them to existing law and follow the advice given by the Delegated Powers and Regulatory Reform Committee which said that it could see no good reason for looking towards an uncertain future in this regard and that the issue should be dealt with when the time comes.
	I strongly support the comments of the noble Lord, Lord Puttnam, on training within the broadcasting industry. He spoke with particular authority about the film industry. The history of training in the broadcasting industry is long and rather unhappy. The BBC has a long and honourable record in that field. I declared an interest at the start of the Committee stage; I have a daughter who is now a senior manager with the BBC. After leaving university, she did a postgraduate training course with the BBC, which was totally admirable. That is part of the great training tradition in the BBC.
	I am sad to say that in commercial television there was no comparable record, despite the fact that ITV companies had training provisions in their contracts. The degree to which we were able to keep them up to it was inadequate. In a world in which technology is changing so fast, it is very important that there should be adequate training. The proposed new clause is a back-up clause and would provide the means for ensuring that that occurs. It is an important matter. It is inappropriate that in the training field some organisations play a full part and others simply poach. The BBC and Channel 4 have good records but one wants adequate arrangements to ensure that everyone accepts their responsibilities.

Lord Lea of Crondall: I support my noble friend Lord Puttnam, who spoke to Amendment No. 86. We had a meeting with seven trade unions operating in the industry in the broad sense. This is one of the prominent issues about which they are very concerned. I include the question of telecommunications within the industry not only because it is part of the industry but also because the challenges in terms of "up-skilling" in telecommunications are integral to the progress of the whole industry.
	The noble Lord, Lord Thomson, referred to the role of the BBC in particular. It has always struck me that years ago the tradition in the industry was that the BBC did the training and everyone else fed on it. In the same way, I remember going to Devonport dockyard. It was said that all those in Devon and Cornwall who had a small engineering business had been trained in Devonport dockyard. My noble friend Lord Puttnam described a more sophisticated body, which has a voluntary levy. There is much worry about the dilution of those commitments. The principle of public service obligations is rather different from the principle of competition. I refer to the practice of "Last person out switch off the lights" and so on. That is the central concern. Public responsibility must be written into the Bill more explicitly; the Bill is currently much too vague. That is why something along the lines of the amendment of my noble friend Lord Puttnam is essential for the whole of the sector.
	BECTU, a big broadcasting union which plays a central role, points out that even those in the United States, and United States producers in Britain, support a compulsory training levy because it facilitates—let us spell it out—a level playing field. That is another way of talking about poaching, as mentioned by the noble Lord, Lord Thomson.
	We should remind ourselves of the big range of skills and occupational training that goes into what we call broadcasting. I remind noble Lords that broadcasters are journalists. In general, the first person one hears when one switches on the radio is a journalist. I draw attention to the Writers' Guild of Great Britain. Its members write soap operas, among other things. That is a complex and skilled area of the industry. I refer also to the Musicians' Union; we shall return to the role of music later in the Bill. I have mentioned the communication workers. We also have Equity. Drama is a mainstay of broadcasting but it is expensive to produce. I could go on through that list.
	I conclude by mentioning the interpenetration of this issue with that of regional employment and regional content. I hope that the Government will seriously consider this proposal and the central principle of the compulsory levy, which is, I believe, part of Amendment No. 86.

Lord Bragg: I support my noble friends Lord Puttnam and Lord Gordon and the noble Baroness, Lady Buscombe.
	I am one of the many hundreds of beneficiaries of training schemes in the BBC. As the noble Lord, Lord Thomson, pointed out, it has a very good scheme indeed and it has continued in many ways. It is an example for all of us. I do not share the dismay of the noble Lord, Lord Thomson, about the ITV system. The company for which I work, Granada Television—I declared my interest at the start of this debate—puts £9 million a year into training. Considering our income at the moment, that is not bad. That extends all over the regions as well as London. In my department of arts and features, we take on people and give them two or three years' proper, fully paid training; we do not make them run round for work experience, which is valuable for some weeks, or two or three months, but which cannot be extended. That effort is going on. We also support Skillset.
	Ofcom will find it difficult to impose the policy on small channels and on independents, which form an increasingly powerful part of our industry. I hope that they will continue to do so in our country. That will be most difficult to impose and there will therefore be a return to the position in which the BBC is supposed to supply all the training, backed up by ITV and Channel 4. That, as the independent sector grows—as it will and should do—will prove to be a very unfair burden.
	In the spirit of being helpful, particularly to my noble friend Lord Puttnam, perhaps I may make a suggestion. It might seem to be pulled out of the air, but I truly believe it could be a radical solution to the problem, if I may in modesty say as much. ITV pays to the Government a completely unnecessary levy of £250 million a year, in addition to the tax it pays. I have talked on several occasions in this House about how that might have been useful about 20 years ago but unnecessary now. Why cannot the Government divert 50 per cent of that—£125 million—to training schemes across the industry? That amount of money, well spent on schemes such as skills sets and invested fully and proportionately in BBC, ITV and particularly the smaller independent companies, could have the most radical effect. That is what we need in this country.
	If communications bound forward after the passing of this Bill—often pointed out so eloquently by the noble Lord, Lord McNally, as an important Bill indeed—there will be a need for skilled young people. Skills continually change and increase. It is increasingly difficult for those who begin in the independent sector—and more of them do—to find the time to obtain the training they need; that is, just getting on with it for months or even two or three years.
	That amount of money directed to that end, and coming out of the levy given unnecessarily, used for the industry instead of the general mores of the Government might be a consideration which could have a radical effect—I am not afraid to repeat that—on the young people of this country coming into the communications industry. They often come in blind with nothing like the support they deserve and need if we are to run as an efficient industry as we would like.

Lord Lipsey: As we have more and more channels, we will have more and more broadcasters trying to buy more and more cheap programmes from more and more independent companies. Small independents, inevitably given the pressures on them, will be tempted to renege on or minimise their training obligations. If we are to maintain the training levels, we must have something along the lines of the back-up powers in Amendment No. 86 proposed by my noble friend Lord Puttnam. It is as simple as that.

Lord Avebury: I want to ask the Minister a simple question relating to Amendment No. 270B in the names of the noble Lord, Lord Carter, and my noble friend Lord Addington concerning disabled people. I notice that coming down the track are the Disability Discrimination Act 1995 (Amendment) Regulations 2003, which amend and extend the DDA in so far as it prohibits discrimination against disabled people in relation to employment and vocational training. The Explanatory Notes on that mention other instruments accompanying that which deal with discrimination on grounds of religion or belief, sexual orientation and age. Those arise from a European directive on discrimination in employment, to which we are a party. I want to be satisfied that that directive and the instruments which flow from it are fully reflected in the wording of this Bill.

Baroness Jay of Paddington: I, too, support the suggestion of my noble friend Lord Carter to reinstate the words in the draft Bill in order to accommodate some of these points. However, I want to return to some of the points raised by my noble friends Lord Bragg, Lord Lipsey and Lord Puttnam. I, too, am a graduate of one of the BBC training schemes, although less distinguished in the broadcasting world than my noble friend Lord Bragg. I am so old that in the days when I was trained by the BBC, it visited universities in order to try to persuade people to join its training scheme. That shows your Lordships how long ago it was!
	I, too, want to make the point that the provisions include not only training in broadcasting or in journalism, but, taking the other points made most notably by my noble friend Lord Lea, a broad spectrum of skills. They include those people working in telecommunications, which is an area different from, for example, journalism and some of the other professions or trades mentioned. One must not ignore the fact that one of the virtues of Ofcom's broad responsibility is that it has a wide scope to cover all the industries mentioned within its remit, which includes skills more technical than those in which my noble friend Lord Bragg and I were trained.

Baroness Blackstone: This is a large group of amendments and it will take me a little time to reply. Furthermore, many speakers have approached the issues from many different angles.
	I of course sympathise with the aim behind Amendments Nos. 82, 83 and 84, but the fact is that Ofcom cannot be given any power, under the regulatory regime permitted by the EC communications directives, to impose any obligations in this area on communications providers. The Television Without Frontiers Directive, on the other hand, does permit stricter obligations to be imposed on broadcasters.
	The EC communications directives limit the types of obligations which can be imposed on providers of electronic communications networks and services. The subject matter of the general conditions, which can be applied to any communications provider, is set out in Clause 48. In very broad terms, such conditions can cover issues such as consumer protection, service interoperability and network access, availability of services in the event of a disaster, protection of health and compliance with international standards.
	The limitation on the subject matter of general conditions is necessary in order to implement Part A of the annex to the authorisation directive. This annex sets out the maximum list of conditions which may be attached to general authorisations and does not permit the imposition of any kind of condition in relation to training and equality of opportunity. Therefore, member states have no discretion to add other kinds of conditions to the regulatory regime permitted by the directives.

Lord Gordon of Strathblane: I thank the Minister for giving way. Will she direct me to the precise directive and explain why on earth we signed up to it if it is so restrictive?

Baroness Blackstone: I think I had better write to my noble friend about what happened in the past. I was not a Minister in the Department for Culture, Media and Sport and did not attend culture Ministers' meetings when the decision was made to agree to what the Commission was recommending. I shall also let him know the precise directive referred to when I respond about the history.
	I turn to Amendments Nos. 85, 271 and 270A. Recommendation 19 of the Joint Committee on the draft Communications Bill raised the same issue as that raised in Amendments Nos. 85 and 271; that is, the need for the Secretary of State's power to add by order other forms of equality to Clauses 24 and 330. As the government response to the committee indicated, this order-making power is important to these clauses as it will ensure that the obligations on Ofcom and the licence holders to which Clause 330 applies remain up-to-date alongside broader anti-discrimination legislation. Perhaps I may say to the noble Baroness, Lady Buscombe, that there is no intention to extend discrimination law by the back door.
	In Clause 24, Ofcom is given a duty to promote equality of opportunity between men and women and between persons of different racial groups in relation to employment with broadcasters. Similarly, in Clause 330 Ofcom has an obligation to include in the licence for every service to which this clause applies conditions requiring the licence holder to promote, in relation to employment with it, equality of opportunity between men and women and between persons of different racial groups.
	The list contained in Clause 24(4) and in Clause 330(1) mirrors two of the most important areas of anti-discrimination legislation. The noble Lord, Lord Addington, will perhaps be pleased to hear that we believe that it is right that, should new forms of general legislation be introduced—such as, in relation to age discrimination—the Secretary of State should have the ability to reflect the general equal opportunity legislation within Ofcom's obligations under Clause 24 and broadcasters' licence conditions. We do not think it would be right to anticipate such legislation in the Bill, as the purposes of Clauses 24 and 330 are to supplement existing anti-discrimination legislation. But we do believe that it is appropriate that the Secretary of State should have a power to amend the scope of these clauses to mirror developments in anti-discrimination legislation when they occur.
	The Joint Committee's recommendation on these order-making powers was that, if retained, they should be subject to affirmative resolution procedure. We strongly believe that these powers should be retained. However, in view of the concern expressed by the Committee and by the Select Committee on Delegated Powers and Regulatory Reform, we agreed that they should be made subject to the affirmative resolution procedure. Therefore, there will always be an opportunity to debate them in the Chamber.
	The purpose of Amendment No. 270B, tabled by my noble friend Lord Carter, is, presumably, to strengthen protection for disabled people. However, I believe that the effect could prove to be the opposite. The Disability Discrimination Act makes certain provision prohibiting discrimination against disabled people and creating certain positive duties to make reasonable adjustments, but does not prohibit discrimination against able-bodied people. Thus, unlike the sex and race legislation, the equality duty does not work both ways.
	We have sought to mirror that approach in the Bill in the requirement to promote the fair treatment of disabled people. But amending the Bill to create obligations relating to equality of opportunity for disabled people would imply reciprocal equality of opportunity for able-bodied people, even if able-bodied people are not mentioned, because the amendment otherwise begs the question: equality of opportunity with whom? The amendment could therefore conflict with other efforts to assist disabled people; for example, an obligation relating to equality between able-bodied and disabled people could conflict with efforts to help disabled people through the provision of, say, "sheltered jobs".
	It was for this very reason that the Government changed references in the draft Bill, published last summer, to,
	"equality of opportunity between disabled persons and persons who are not disabled"
	and,
	"between persons who have had disabilities and persons who are not disabled and have not had disabilities",
	to the current formulation. The wording is designed to have a positive impact with relation to the rights of disabled people.
	I turn to Amendment No. 86—

Lord Addington: The word "fairness" is worrying me. Is there a legal definition of the word in the Minister's response? If the noble Baroness gave one, I did not catch it. I not sure about the exact meaning of "fairness".

Baroness Blackstone: I understand that the concept is well understood. That is why it has been placed in the Bill in exchange for the earlier drafting to which I referred.
	I turn to Amendment No. 86—

Lord Carter: My noble friend said "in exchange", but the draft Bill made reference to equality of opportunity and fairness of treatment; in other words, it had both of them. There has not been an exchange. We have removed "equality of opportunity" and left "fairness" in the legislation. I still believe that the latter would be stronger if both references were retained.

Baroness Blackstone: When I used the word "exchange", that was a slip of the tongue. I meant to say that we now rely on "fairness". I hope that what I have said is clear. I recognise that this is quite a complex area. However, I can assure my noble friend and the noble Lord, Lord Addington, of the Government's good faith in this respect. The provision is designed to reflect the Disability Discrimination Act, and not to leave in the Bill something that could be deemed at some later point to be in conflict with what is laid down in the DDA. It is certainly designed to support the rights of disabled people—

Lord Avebury: Before the Minister moves on from Amendment No. 27OB, can she answer my question about whether the wording reflects the regulations that are about to be laid before this Chamber?

Baroness Blackstone: I am sorry. I forgot to respond to the noble Lord. However, I shall write to him setting out clearly the answer to his question.
	I cannot argue with the underlying aim of Amendment No. 86, which proposes to ensure a better-trained, more competitive broadcasting industry. I absolutely accept what all my noble friends said about the importance of training. I believe that most noble Lords who spoke to this amendment were from this side of the Committee. However, I do not share my noble friend's slightly pessimistic view that the existing provisions on training in the Bill will not be sufficient to achieve this aim. I shall return to that aspect in a moment.
	My noble friend Lord Bragg has put forward an extremely interesting idea. It is certainly a proposal that I shall take away for consideration. However, I imagine that my right honourable friends, and my honourable friends in the Treasury, will argue that this money could be more usefully applied to many other areas of public expenditure. Nevertheless, I shall take away my noble friend's idea and see where that suggestion may lead.
	I must also confess to being a little unclear about how the new clause would work in practice. It is not clear on whom the proposed levy would be imposed. Would it be an industry-wide levy? Would it be imposed only on those licensed radio and television services that fail to provide adequate opportunities for training and retraining? Alternatively, perhaps it would be imposed only on public service broadcasters.
	It is a fact that the economics of the broadcasting industry, and the nature of a great deal of the employment within it, bring difficulties in sustaining the necessary level of skills development. Some broadcasters have recognised this, as evidenced in the support for voluntary initiatives such as the Skillset/DCMS Audio Visual Training Group that reported last year—an initiative with which my noble friend Lord Puttnam is familiar.
	However, as the Government have said previously, we believe that training is so important in this sector that it is not enough to rely on voluntary initiatives alone. That is why we have introduced new, strengthened provisions on training in this Bill. For the first time, training obligations will apply to all television and radio broadcasters who meet the threshold conditions set out in the Bill. Ofcom will have a new duty to promote training more widely in the sector. These provisions put the broadcasting sector well ahead of many others. We are fairly confident that they will deliver the results that we all wish to see.
	In answer to the noble Baroness, Lady Buscombe, much will of course depend on the action that Ofcom takes under Clause 24, and on the licence conditions that it imposes under Clause 330. Following a recommendation of the ITC's Programme Supply Review, the Secretary of State has asked Skillset, which was referred to by my noble friend Lord Puttnam, to establish a formal task force and report back to Ofcom on these very issues. Skillset has already begun working with all the key stakeholders to consider how Ofcom might maximise and further promote training within the industry. We look forward to considering the results of this most important work.
	We should also remember that Ofcom will have very broad powers to vary broadcasters' licences if it is satisfied that licence holders are not properly performing their obligations. Ofcom might use those powers to impose more specific conditions to promote training if that is believed to be necessary.
	In summary, I believe that effective measures are in place to make sure that licence holders do deliver on training. Therefore, it is with regret that I have to tell my noble friend that I do not think that his amendment is really necessary.
	Finally, I turn to Amendment No. 271A tabled by the noble Lord, Lord Crickhowell, but spoken to by the noble Baroness, Lady Howe. She said it was a probing amendment, but I believe that the noble Lord and, indeed, the noble Baroness, are on to something here. I have considerable sympathy with the aim of the amendment to ensure that the equal opportunities and training requirements are not evaded where individual television channels or local radio stations are part of a larger group of companies that, taken together, would meet the thresholds. It seems right that such services should play their parts both in promoting equal opportunities and training, but at present they would be exempted from the requirements of Clause 330, which relate only to the individual licence holder.
	We shall take this away and consider it. However, in the light of what I said earlier, I very much hope that my noble friend will feel able to withdraw his amendment.

Lord Gordon of Strathblane: I am slightly astonished that any European directive should prevent a government agency such as Ofcom from simply promoting the development of opportunities for young people in the field of telecommunications. I could understand that if perhaps it was going to pay for it because that might be construed as interference with international competition. However, the Minister has been very gracious in offering to write to me on the subject. I shall study her letter with the greatest interest and return to this matter on Report.

Baroness Buscombe: Before the noble Lord sits down, perhaps I may ask the Minister if I could be copied on that letter. I am disappointed that telecommunications and the Internet should be excluded and I do not understand why. I thought that this was what convergence was all about; perhaps I am missing the plot. I would be grateful for a copy of the letter.

Lord Lea of Crondall: As regards Amendment No. 86, the question was raised by the Minister of a levy and what would happen about training. The normal principle of a levy is that there is a rebate for people who carry out the training. Clearly, this has to be considered more and will arise again on Report. Given the support around the Chamber, we are asking that the Government consider how this could be made better. It would be helpful if the Minister could give consideration to how the principle set out by my noble friend Lord Puttnam in Amendment No. 86 can be improved before we reach Report.

Lord Puttnam: I shall not move Amendment No. 86, but I should like to make three points. First, I hope the noble Baroness will acknowledge the increasing and total discontinuity between the rhetoric and action in the Government's entire attitude to training. We cannot keep referring to a skills gap; keep urging the Creative Industries Board or keep referring to parity of opportunity and not be prepared to back to the hilt those industries and, indeed, those companies within those industries, that are prepared to pay for training. It is interesting—we have touched on Europe—that the German industrial economy is being crippled by what is termed "the free rider principle". German businesses, in droves, are getting out of paying for training for which they have paid not just for decades but centuries. Are we seriously to go down the same route?
	Here, we have an industry and major players within it who want to pay but who are extremely irritated by the fact that many people are able to evade and avoid. All we suggest is a back-up power for Ofcom to address that issue. Perhaps this is not the right amendment. I am certain that other and more specific amendments will be tabled on Report.

Lord Gordon of Strathblane: I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	[Amendments Nos. 83 to 85 not moved.]
	Clause 24 agreed to.
	[Amendment No. 86 not moved.]
	Clause 25 agreed to.

Lord Puttnam: moved Amendment No. 87:
	After Clause 25, insert the following new clause—
	"CHARGING PRINCIPLES
	(1) Other than in the circumstances specified in subsection (3), OFCOM shall not fix any administrative charge for any functions undertaken by OFCOM for any charging year unless—
	(a) at the time the charge is fixed there is in force a statement by OFCOM of the principles that OFCOM are proposing to apply in fixing charges for the relevant functions for that year; and
	(b) the charge is fixed in accordance with those charging principles.
	(2) Those principles must be such as appear to OFCOM to be likely to secure, on the basis of such estimates of the likely costs as it is practicable for them to make—
	(a) that, on a year by year basis, the aggregate amount of the charges payable to OFCOM in accordance with the relevant statement is sufficient to meet, but does not exceed, the annual cost to OFCOM of carrying out the functions to which the relevant statement applies;
	(b) that the cost of carrying out those functions is met by the imposition of charges that are objectively justifiable and proportionate to the matters in respect of which they are imposed; and
	(c) that the relationship between the meeting of the cost of carrying out those functions and the amounts of the charges is transparent.
	(3) The provisions of this section do not apply to—
	(a) administrative charges under Chapter 1 of Part 2 of this Act;
	(b) charges, fees or payments under the enactments relating to the management of the radio spectrum;
	(c) any other payment made to OFCOM which is to be paid into the appropriate Consolidated Fund by virtue of section 393;
	(d) charges under section (Charges in respect of OFCOM's central functions); and
	(e) charges relating to costs incurred by OFCOM prior to the radio and television transfer dates.
	(4) A relevant statement of charging principles for the purposes of this section shall specify—
	(a) the relevant functions carried out by OFCOM, and
	(b) the statutory basis for those functions.
	(5) No tariff shall be fixed by OFCOM under sections 4 and 87 of the 1990 Act and sections 4 and 43 of the 1996 Act (general licence conditions) except in accordance with the relevant statement of charging principles.
	(6) As soon as reasonably practicable after the end of each charging year, OFCOM shall publish a statement setting out, in respect of each service for which a relevant statement of charging principles has been made and of that year—
	(a) the aggregate amounts of the administrative charges for that year that have been received by OFCOM;
	(b) the aggregate amount of the administrative charges for that year that remain outstanding and are likely to be paid or recovered; and
	(c) the cost to OFCOM of carrying out the functions specified in the relevant statement of charging principles.
	(7) Any deficit or surplus shown (after applying this subsection for all previous years) by a statement under subsection (6) shall be carried forward and taken into account in determining what is required to satisfy the requirement imposed by virtue of subsection (2)(a) in relation to the following year.
	(8) The provisions of section 36(1), (5) and (6) shall apply to a statement of charging principles made under this section.
	(9) In this section "charging year" has the same meaning as in section 35."

Lord Puttnam: I rise to move Amendment No. 87 in the name of the noble Lord, Lord Crickhowell, who cannot be in his place. I shall do my best, but inadequately, to make the case that he would have set out. I suggest that this is one of the big brutes of the Committee stage of the Bill. It is a very big issue indeed.
	In moving these amendments which introduce a number of new clauses it is hoped that I shall provide the House with the opportunity to debate funding issues and the charging principles to be followed by Ofcom. Perhaps even more important, I am giving Ministers the opportunity to explain their approach to these issues and, for the very first time, to give detailed explanations to Parliament about the way in which Ofcom is to be funded.
	It is really extraordinary that the elected House did not find the time to examine the adequacy and fairness of these financial arrangements. We in this Chamber must at least try to repair that neglect and focus on what I referred to at Second Reading at col. 673 as one or two of the "fatal flaws" in this legislation. I said then that unless Ofcom is more than adequately resourced with a clear underpinning from the public purse, frankly it begs the question, "Why bother with the Bill in the first place?"
	The response of the noble Lord, Lord McIntosh of Haringey was, I am sad to say, uncharacteristically complacent. He stated:
	"I assure my noble friend . . . that there is not really any problem of the funding of competition costs. It has been agreed by Ofcom, by the DTI and by Her Majesty's Treasury. That is set out both in this Bill and in the paving Bill".—[Official Report, 25/3/03; col. 784.]
	I am not sure that that tells us very much. Incidentally, it is not set out in the Bill.
	Ofcom, the DTI and Her Majesty's Treasury may well have agreed. But what about Parliament? Surely, we are entitled to know what has been agreed and to be supplied with adequate information about the analysis that led to that agreement so that we can form some sort of judgment regarding the adequacy of the funding to be provided.
	As to the second part of the Minister's response, the more innocent among those who heard or read the remarks might think that all they had to do was to turn to the relevant sections of the Bill and everything would become absolutely clear. I suggest that noble Lords do just that and turn to Clause 35 entitled "Fixing of Charges". There are two-and-a-half pages. Clause 36 on "Supplemental service provision for non-payment" is another full page. Clauses 37 and 38, which relate to non-payment, result in two-and-a-bit additional pages. Finally, Clause 39 on "Suspending service provision for non-payment" is another one-and-a-quarter pages. I am afraid that my eyes had begun to glaze over well before I got to the end of Clauses 35 and 36 without ever feeling remotely reassured by what I was reading.
	The Explanatory Notes presented by the Government helped a little. Paragraphs 87 and 88 inform us that universal service providers designated in Clause 63 have to meet charges,
	"set by OFCOM in accordance with pre-determined 'charging principles' designed to ensure that the aggregate charges collected in any one year will just cover OFCOM's costs—in that same year—of carrying out the administrative functions listed in subsection (5)".
	Note "listed in subsection (5)", which is important. Paragraph 88 reads:
	"Charges must also be objectively justifiable, proportionate and transparent".
	All that implements the relevant EU authorisation directive.
	So far so good but the functions listed in subsection (5) are by no means all the functions of Ofcom. In paragraph 75 of its report the Joint Committee commented:
	"It is intended that the costs of OFCOM will be met almost entirely from those it regulates. This broadly replicates the way in which the current costs of the five existing regulators of £118 million are met, although at present the Exchequer meets half the running costs of the BSC, an arrangement that is to be discontinued under the new legislation, and some of the costs of Oftel. Both the Radiocommunications Agency and Oftel have forecast increases in the future in the costs of regulating the sectors for which they are responsible. Taken together with the transitional costs associated with the move to a single regulator, this may, according to the Government, led to 'some modest increases in the pecuniary cost of the new regime' with the savings associated with merger accruing over a longer timescale".
	Some witnesses before the Joint Committee were concerned at the lack of savings foreseen as a consequence of the merger and several organisations expressed worries that they should not be asked to fund activities unrelated to their sector. The Secretaries of State expected that there would be economies of scale from combining the five regulators. The Joint Committee agreed but urged caution in seeking to apply too much pressure on Ofcom to secure cost reductions. It said:
	"This may lead to false economy and strike at the heart of the purposes of the Bill. Effective regulation does not come cheap, and the long-term costs to industry and to the public will be greater if OFCOM lacks the resources to undertake effective regulation".
	I attempted to make that point at Second Reading.
	I have referred to the charges that meet the requirements of the authorisation directive set out in Clauses 35 and 36. However, the Joint Committee suggested that:
	"These provisions leave it uncertain whether OFCOM could charge an organisation providing an electronic communications network or service for the performance of central functions or policy development or"—
	most importantly—
	"for the exercise of OFCOM's functions under the Competition Act or the forthcoming Enterprise Act".
	What the Joint Committee said in paragraphs 79 and 80 is of crucial importance. I quote from it almost in full. It stated:
	"Although the ITC has developed general principles of cost-based apportionments, an assessment of regulatory exposure and the ability of licensees to pay, there are no statutory provisions for broadcasting or for wireless telegraphy directly analogous to those in Clause 29. This at least makes it theoretically possible that the entire burden of OFCOM's general costs that cannot be attributed to functions under Chapter 1 of Part 2 will fall entirely on other sectors. This would in our view be unfair and unacceptable".
	It went on to recommend that,
	"the principles underpinning charges under Clause 29, namely that charges should be fixed in accordance with clear principles and related only to relevant functions, be extended to all administrative charges under the Communications Bill and the broadcasting legislation that it amends, except where incentive charging for wider purposes is intended".
	The committee went on to state:
	"This creates a potential gap with regard to OFCOM's central services and its competition law functions, which cannot easily be allocated in advance to particular parts of the communications sector. We will examine OFCOM's powers under competition law and its capacity to exercise them later, but it is evident that these powers will require OFCOM to employ high quality staff with specialist skills of a kind that it is unlikely to inherit from the existing regulators. Don Cruickshank, a former Director-General of Telecommunications, pointed out that the OFT and Competition Commission were funded from the Exchequer and that their capacity to attract resources was helped by the Treasury's commitment to competitive markets".
	It therefore recommended:
	"To ensure that OFCOM has adequate resources to undertake its competition law functions, we recommend that those functions be funded directly by the Exchequer. We would prefer to see OFCOM's central functions funded proportionately and transparently through a levy on all companies above a certain size in the regulated sectors. If this proves incompatible with the EC Directives, we recommend that such costs should also be met from the Exchequer".
	I apologise for quoting at such length, but I hope that in a minute the Committee will agree that it was entirely necessary.
	The Government's response to the Joint Committee was:
	"The Government is considering the Funding Issue".
	That was it. Since then all we have had from the Minister is that reference to an agreement by Ofcom, the DTI and the Treasury. In other words, the parliamentary telescope is today focused on a black hole at the very centre of the regulatory universe. By the time the Bill leaves this House we must know exactly who funds competition powers, and how; we must know about the principles of charging that apply to those not covered by the EU directive; and we must know how central costs are to be allocated.
	There is another even denser black hole at the centre of the immense chasm that the Government have so far left in this particular part of the universe that they have created. It is: who stands behind the regulator in the event of a counter suit from a regulated concern? Ofcom will be dealing with vast, well-resourced international organisations. If they face what they consider to be unreasonable delay, loss of business or harassment, they may well sue Ofcom. Tragically, we live in an age where litigation of this kind is increasingly common. Who pays the costs incurred by Ofcom or any damages awarded in the courts? What is certain is that it cannot be the organisations that it regulates.
	That is the background and the reason for bringing forward these new clauses. Amendment No. 87 introduces a new clause designed to provide an opportunity to debate Recommendation 30 of the Joint Committee, that all administrative charges under the Bill and broadcasting legislation that it amends should be fixed in accordance with clear principles and related only to relevant functions, except where incentive pricing is intended. The new clause is modelled on Clause 35 which relates only to electronic communications networks and services.
	Amendment No. 88 arises from Recommendation 31A that Ofcom's competition law functions should be funded directly from the Exchequer. Amendments Nos. 88 and 80 cover Recommendation 31B that central costs should be funded by a "unified levy" or by the Exchequer. The two clauses relate to the alternatives. Finally, Amendment No. 91 deals with the extraordinarily important question of legal costs. Ofcom will be dealing with extremely tough characters. It is going to be a rough old world out there. The big beasts in the communications jungle may well be tempted to find out just how much courage Ofcom has. Its courage will necessarily relate to how deep its pockets are in the event of things going wrong. There may be an early and difficult test for Ofcom to meet. It would be tragic if it fell at the first hurdle. I beg to move.

Lord Thomson of Monifieth: These Benches strongly support what the noble Lord, Lord Puttnam, has just said. The noble Lord, my noble friend Lord McNally and others were part of the House's team dealing with the pre-legislative scrutiny.
	I was fascinated to hear the noble Lord say that in preparing his remarks, even after all his experience of the pre-legislative process, he found some difficulty in running to earth exactly where in this vast Bill the financial buck stops if Ofcom is to do service to the public interest. As a newcomer to this great Bill, I certainly found it an extraordinary experience to go through it to try to find out exactly what are the financial arrangements for funding.
	This series of new clauses is vitally important at the very heart of this new Bill if the Ofcom operation is to be successful. Therefore, for my part, I congratulate the members of the pre-legislative Joint Committee on this series of new clauses. As a very long retired regulator of broadcasting, I am glad that I lived in simpler times.
	Both the Government and Ofcom face a massive challenge in converting five regulators into one and regulating the combined interests of the telecommunications and broadcasting industries in a global economy which is itself in a state of rapid change. The Government should feel relieved that the five regulatory bodies to be merged into one super-regulator in a multi-merger exercise have been able to do so in a remarkable spirit of co-operation. It is important for the Government to appreciate how fortunate they are in that.
	Like the noble Lord, Lord Puttnam, I read with some dismay the Government's response to the Joint Committee report. Like the noble Lord, I was rather taken aback to see that, despite all the years that the Bill has been before us in one form or another, the Government are still currently considering funding issues. I find myself totally astonished that that should be the position today.
	However, on page 10 of the Government's response, in reply to the recommendation made by the Joint Committee on the merger of the regulators and the question of the likely costs of having a single regulator instead of five, they say:
	"We expect OFCOM to be efficiently and effectively run and will not countenance waste or inefficiency. But we also expect OFCOM to be a world class regulator with highly skilled, professional personnel capable of delivering quality regulation".
	The noble Lord, Lord Puttnam, mentioned the fact that the Government's weakness in their whole presentation of what are truly momentous issues in the Bill is that, while they are extremely strong on rhetoric, they are a good deal weaker on the will to follow it through. In carrying through a merger of five separate regulatory organisations, we know that individual interests will be expressed and that the merger should be completed as efficiently and with as little waste as possible. However, one must face the inevitable fact that, during the transitional period, rather than enjoying cost-savings, some additional costs will have to be met.
	The absolutely critical issue here is that Ofcom itself should be adequately funded in order to perform its role as, to use the Government's own words,
	"a world class regulator . . . delivering quality regulation".
	I pay tribute to those who have produced the series of new clauses before us. In itself that must have been a formidable task. The clauses provide a road map—to employ the current rather over-used cliche—to achieve the Government's aim, if they have the will to do so. They make it clear that if the Government want Ofcom to defend the national interest effectively in a world of global telecommunications and broadcasting, then the Exchequer will have to be the final funder. That is the heart of the issue. It is on that point that we want a positive response from the Government. If we do not get it today, then we will demand it under different circumstances at a later stage in the Bill.
	The Government appear ready to expose commercial television in Britain to the winds of global competition in a way that neither the United States Government nor the governments of our European neighbours have even begun to contemplate. That is the situation into which this Bill will put the British broadcasting and telecommunications industries. As the noble Lord, Lord Puttnam, remarked, the giants of the global media world will not lack money and resources. They will use the most expensive lawyers and experts to fight their corner. In this country, we should not allow Ofcom to be outgunned. We have a world-class public broadcasting system and great economic interests vested in our telecommunications industry. We should ensure that Ofcom is adequately funded so that it can look after the national interest.

Baroness Buscombe: I should like to support Amendments Nos. 87, 88 and 90, and to raise one or two questions in relation to Amendments Nos. 89 and 91. As has already been said so eloquently by the noble Lord, Lord Puttnam, one of the criticisms that can be made about the Bill is that it is not clear how Ofcom is to be funded. It is important for all concerned that Ofcom is properly funded. The Ofcom pump will need to be primed. A watchdog needs its meat. So, too, does Ofcom if it is to discharge its functions efficiently.
	Amendment No. 87 proposes a new clause setting out the various principles underlying the administrative charges to be fixed by Ofcom in respect of certain functions that it undertakes. The new clause limits the charges to the annual cost of carrying out the relevant function. That seems to make good sense: the user pays. We therefore support the amendment.
	On Amendments Nos. 88 and 90, we agree that Ofcom's competition law functions and central functions should be funded by the Exchequer. As regards Ofcom's competition law functions, it is difficult to identify the user who should pay. Those who would benefit from Ofcom's competition law function would be everyone in the relevant market. It would be difficult to impose any specific charges on any one or more of those in the market. In those circumstances, it seems obvious that the Exchequer should pay for those functions, which are for the common good.
	Ofcom's central functions are defined in the new clause as,
	"functions relating to the administration, management and policy of OFCOM",
	excluding functions on which provision is made elsewhere in the Bill. Here the difficulty is identifying how much of those charges should be paid by the user. If the central function were funded by the user, there would be almost impossible problems as to how to apportion the expense among the users of the relevant functions. Any error would result in some users paying more than they should—that should be avoided. We therefore support the clause proposed in Amendment No. 90, which provides for the Exchequer to provide those funds.
	We are concerned about how Amendment No. 91 would work in practice. We can entirely see the purpose: to ensure that legal costs are paid. However, what will happen if an order for costs is made against Ofcom, and the Secretary of State does not make a grant under the new clause? I should be grateful, therefore, if the noble Lord, Lord Puttnam, could clarify that point.

Lord McIntosh of Haringey: I fully recognise the importance of the subject and the strength of feeling about it in the Joint Committee. The Government's general approach as between sectoral regulation and general regulation is that the costs of sectoral regulation should be borne by those who are regulated. Therefore, Ofcom will be funded in the main by a mixture of fees and charges levied on the industries that it will regulate. We intend that Ofcom's charges will, in general, be proportionate and related to the sectors to which they apply.
	However, we must also recognise the constraints that apply to the separate sectors and the limitations placed on charges that can be imposed on providers of networks and services and users of spectrum, which do not apply to the other sectors for which Ofcom is responsible. The Joint Committee expressed concern that the costs of carrying on Oxfam's—sorry, Ofcom's—central functions could be loaded, unfairly, on to the broadcasters. That point has been made very eloquently today.
	Amendment No. 87 would require Ofcom to fix administrative charges for any functions undertaken in relation to broadcasting in accordance with a statement of principles. The basis on which fees are charged for broadcasting licences is set out in the 1990 and 1996 Broadcasting Acts. Those provisions will be retained within the regime that Ofcom will operate. They provide for a clear split between licence fees, which any licence-holder may be asked to pay, and the additional payments that holders of certain radio and television licences must pay. The licence fee element is intended to cover the cost of regulating licensed services. Under the provisions of the Broadcasting Acts, in setting the fees for broadcasting licences, Ofcom must publish tariffs of its charges. As we told the Joint Committee, the Government have sympathy for the argument that there should be transparency in how Ofcom fixes its administrative charge under the broadcasting regime.
	I can, therefore, undertake to the noble Lord, Lord Puttnam, that we will consider the amendment further to ensure that the different sectors that Ofcom regulates will be treated fairly. He makes the perfectly valid point that, so far as concerns telecommunications, Clauses 35 to 39, which implement the authorisation directive, provide for telecommunications the exact provision that he seeks for broadcasting. He said, "So far, so good". It is that exact point that I am now undertaking to consider between now and Report stage. It seems to be a legitimate point.
	The noble Lord, Lord Puttnam, read out at length the Government's response to the Joint Committee's recommendations. I acknowledge that the response did not go as far as I have been able to go today, as the Government were not able to do so at the time. We have gone further in discussions between the Treasury and Ofcom to settle the overall funding regime of Ofcom. That is why we are now prepared to consider a statement of charging principles for broadcasting comparable to that for telecommunications.
	We recognise that there is a problem. I do not know yet what the solution is with regard to what we might call "orphan costs"—in other words, the costs, to which everybody has referred, that are the responsibility of Ofcom but are difficult to assign to broadcasters or to anybody in the industry sector. Again, the question of how to cover those costs, whether it is done by grants from the Secretary of State or in some other way, must be considered, and I undertake to consider it before Report.
	I can deal more briefly with the other amendments in the group. With regard to Amendment No. 88, we agree that it is important to ensure that Ofcom's functions under Part 5 are adequately resourced. It is possible for the costs of exercising powers under the Broadcasting Acts to ensure fair and effective competition to be met from licence fee revenue, and applicants for consent to newspaper transfers pay a set fee according to the circulation figures of the titles concerned. We can see no reason why that should not continue with Ofcom, but we recognise that, mainly because of the restrictions imposed by the electronic communications directives, there will be competition functions under Part 5 for which Ofcom is unable to levy a charge. I shall return to that matter.
	I shall deal with Amendments Nos. 89 and 90 together. They concern the central functions and the alternative means by which they might be funded. As I said, we accept that there are central functions that cannot be funded from a levy. The best example of that is the costs of, for example, work on media literacy. We have recognised throughout that there will be orphan costs. We accept that, where it is genuinely impossible for such costs to be met through charges, some provision will need to be made from the Exchequer. We do not intend that Ofcom should levy a charge to cover those costs, as Amendment No. 89 would require. Indeed, the Office of Communications Act 2002 contains specific provision to enable the Secretary of State to make payments of grant to Ofcom. If that happens, Ofcom should set out clearly the functions for which it seeks the grant and the reasons why they cannot be supported in other ways. We see no reason for specific statements applying to those costs, as Amendment No. 90 would require. Amendments Nos. 89 and 90 are unnecessary.
	The final amendment, Amendment No. 91, reflects the fact that, as my noble friend Lord Puttnam, said, it is a rough old world. As the noble Lord, Lord Thomson of Monifieth, said, well funded people could sue Ofcom, and the money must be found from somewhere. That is true of any aspect of government. We could have another BSE crisis, and we have just had substantial expenditure on an Iraqi war, which could not have been anticipated and for which the Treasury had to make special provision.
	We recognise the risks that, if Ofcom loses a legal case, it may find that the costs of the other parties are awarded against it, and that could be a lot of money. Ofcom has looked into the possibility of obtaining commercial cover against that, but I do not think that that will be possible, especially when there might be a statutory duty to undertake the legal action in the first place. If that were the case, it would be necessary for Ofcom to make a case for costs to be met from grant payments. The Office of Communications Act 2002 already allows the Secretary of State to pay grant to Ofcom from money provided for such purposes.
	I am sorry to have taken so long, but I recognise the importance attached to the issues. I hope that my response, particularly that on Amendment No. 87, was helpful.

Lord Thomson of Monifieth: Before the Minister sits down, is he really telling the Committee that in this major Bill, which sets out the long-term future through the 21st century for our broadcasting and telecommunications industry, the kind of financial risks that it will undoubtedly face are to be dealt with on a begging-bowl basis for the contingency fund of the Government after the accidents have happened? Is no provision to be made for proper state backing for safeguarding our national interests in these matters?

Lord McIntosh of Haringey: The noble Lord, Lord Thomson, has been in government and has long experience. He knows that where we have contingent liabilities we make provision for them. Where there is no event anticipated which would give rise to a contingent liability, it is impossible to make provision. I say this time after time at Starred Questions in response to the noble Lord, Lord Saatchi. We are very transparent about our contingent liabilities. We provide a statement every year of contingent liabilities, even when they are unquantifiable. But those are risks for which there is some trigger. The risks of losing a legal action can apply to any part of government and no government can, or should, provide in legislation for how those risks will be covered. They are the responsibility of government. They do not need to be reflected in individual legislation.

Lord Puttnam: I thank the noble Lord for his response. I am hugely encouraged. He will understand that it would have helped me enormously if we could have had that kind of response a month or two ago. I failed my maths O-level and it has really tested everything that I have learned since to get to grips with these clauses.
	I should like to make two points. I am slightly puzzled. The Minister raised the analogy of the Iraq war. He would agree that it would have been a poor incentive to Saddam Hussein to back off if he believed for one second that the Exchequer was not prepared to fund the costs of the military. It is not a great analogy, but it serves.
	In a much earlier speech in Committee, my noble friend Lord Alli made a very good point. He said, "I come from that tough business. I am a producer. I know how to look after myself". He said to the Government, "Don't tempt me to test you". I suppose that what I am hoping to hear at Report is that the level of determination of the Government not to be, to use the phrase of the noble Lord, Lord Thomson, out-gunned by a tough global company is something which I am not suggesting necessarily should be on the face of the Bill, but that the Government must make it absolutely evident that they will back Ofcom to the hilt. If they find themselves head-to-head with one of the big beasts in the jungle, that big beast can assume that our pockets are, if anything, deeper than its. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	[Amendments Nos. 88 to 90 not moved.]
	Clause 26 agreed to.
	[Amendment No. 91 not moved.]
	Clause 27 agreed to.
	Schedule 2 agreed to.
	Clause 28 [Transitional functions and abolition of pre-commencement regulators]:

Lord Avebury: moved Amendment No. 92:
	Page 26, line 31, at end insert—
	"( ) Where under contractual arrangements in place prior to the commencement of the Act liability is established for payment of charges levied by pre-commencement regulators such arrangements shall continue to have effect after the abolition of the pre-commencement regulators as if they applied to charges levied by OFCOM."

Lord Avebury: Amendment No. 92 deals with transitional functions in Clause 28 and Amendment No. 320 concerns transitional provisions in Schedule 18. These amendments deal with the transitional arrangements for charges made by pre-commencement regulators for terrestrial-shared network infrastructure facilities. The effectiveness of these commercially managed and owned national network services is reflected in the fact that the UK is currently the acknowledged world leader in matters of terrestrial broadcasting networks and the introduction of new technologies and services.
	The providers played a key role in the development of the UK's terrestrial radio and television and they also licence antenna space to mobile and fixed wireless operators in the United Kingdom, thus reducing the number of mast and tower sites that are needed. Most of the sites are potentially suitable for sharing by mobile operators, subject to planning permission and to obtaining third party consent—for example, from the landlord—and they can provide the mobile telephone industry with a significant proportion of its network site requirements in the United Kingdom.
	Under present arrangements, the owners of the masts and towers enter into contracts for the provision of sharing arrangements with mobile operators, and these may include charges to recover the costs imposed by the existing regulator. The Bill provides Ofcom with the power to define what kind of communication providers are to be subject to charges and to fix the charges to be paid by those providers. It does not, however, specify the basis on which the charges would be levied. In essence, as it appears to fix charges, it is not clear whether costs associated with providing the services can continue to be passed on under the new arrangements. It would be unfair if new financial burdens were to be imposed on those providers in respect of existing contractual arrangements.
	I cannot believe that that is the Government's intention. To make that clear, the amendments seek to ensure that existing contractual arrangements continue to have effect as if any new charges levied by Ofcom were, for the purposes of those contracts, charges made by the previous regulator. I beg to move.

Lord McIntosh of Haringey: I do not wish to pre-empt further debate but there is a very simple answer to the amendments. Clause 27 of the Bill and Schedule 2 associated with it—which we have already passed—contain provisions for the transfer of the property, rights and liabilities of the existing regulators to Ofcom. These provisions give the Secretary of State power to direct the existing regulators to make schemes to transfer their property, rights and liabilities to Ofcom. This includes liabilities of the kind to which the amendments relate.
	Schedule 2 specifies the property, rights and liabilities that are capable of being transferred and specifically, at paragraph 2, includes provision the effect of which would be to ensure that references in any agreement, document, process or instrument of any description to the pre-commencement regulator would be treated as references to Ofcom once the scheme has come into force. The Bill already contains adequate provision.

Lord Avebury: That sounds very convincing. I wonder how it was that in the discussions between the Government and the proprietors of the masts and towers that was not made clear so that they did not feel it necessary to raise the matter with us and cause us to table the amendments.

Lord McIntosh of Haringey: I do not know. I shall write to the noble Lord, Lord Avebury.

Lord Avebury: I am grateful. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	Clause 28 agreed to.
	[Amendment No. 93 not moved.]
	Clauses 29 to 34 agreed to.
	Clause 35 [Fixing of charges]:

Lord Evans of Temple Guiting: moved Amendment No. 94:
	Page 35, line 32, leave out from "charges" to end of line 36 and insert "for a particular case includes—
	(a) power to provide that the charges in that case are to be equal to the amounts produced by a computation made in the manner, and by reference to the factors, specified by them;
	(b) power to provide for different charges to be imposed in that case on different descriptions of persons; and
	(c) power to provide for particular descriptions of persons falling within subsection (2)(d) to (f) to be excluded from the liability to pay charges in that case."

Lord Evans of Temple Guiting: The amendment gives clarification of the scope of the existing provisions. It adds nothing new to the Bill. A question was raised whether the existing wording was entirely consistent with the possibility that Ofcom might wish to levy administrative charges on a basis related to turnover. There was a suggestion that Ofcom might, on the contrary, be obliged to levy flat-rate charges—that is to say, that the charge should be the same for every person, or every person of a particular description, irrespective of the size of the business.
	It is not the intention of the Bill to set out a particular charging system or systems to be used by Ofcom. There may be cases or categories for which flat-rate charges would be appropriate. Equally, there will certainly be categories for which other charging bases—perhaps relating to turnover—would be more appropriate. The amendment removes any possible implication that Ofcom is limited to flat-rate charges. I am sure that it is a right change to make. I beg to move.

Baroness Buscombe: I am grateful for the Minister's explanation, both now and earlier in a letter that he kindly sent to me, a copy of which was placed in the Library. I entirely understand the purpose of the amendment and agree with it.

On Question, amendment agreed to.
	Clause 35, as amended, agreed to.
	Clauses 36 to 41 agreed to.
	Clause 42 [Power of OFCOM to set conditions]:

Lord McNally: moved Amendment No. 95:
	Page 42, line 31, at end insert—
	"(9A) OFCOM shall not set conditions of a discretionary character under this section in any case in which they decide that a more appropriate way of proceeding in relation to the matter in question would be under the Competition Act 1998 (c. 41).
	(9B) When OFCOM have come to a decision on the appropriate way of proceeding under subsection (9A) they shall publish a notice to that effect, giving their reasons for the decision, in such manner as they consider appropriate for bringing their decision to the attention of the persons who, in their opinion, are likely to be affected by it."

Lord McNally: I hope that Ministers will find this group of amendments useful if not acceptable. We are trying to make sure that we have the balance right between Ofcom's sector-specific powers and the competition powers in the Competition Act 1998 and the Enterprise Act 2002. I think our committee was much influenced by one of the Conservative members, Andrew Lansley, who had served on the Enterprise Bill in another place and had become quite an enthusiast for its powers, if properly used. We were also impressed by the evidence from Don Cruickshank, who said that the United Kingdom is acquiring a system of competition law "worthy of its name" and developing a culture of enforcement to match. Without going back to the previous debate, that culture of enforcement and resources of enforcement will be very important.
	It was interesting that, on balance, the pre-legislative committee thought that, where it could, Ofcom should leave these matters to the competition and enterprise legislation to give greater certainty to the players in the sector that they have clear Acts to refer to and to make sure that Ofcom used its sector powers only where absolutely necessary. These amendments seek to get that balance right. I beg to move.

Baroness Buscombe: We support these amendments. Clause 42 gives Ofcom the power to set conditions in the electronic communications industry. Amendment No. 95 would prevent Ofcom from setting conditions of a discretionary character if it decides that a more appropriate way of proceeding would be under the Competition Act 1998. That we entirely support.
	Although I am not quite sure what,
	"conditions of a discretionary character"
	are, and whether the noble Lord, Lord McNally intends the amendment to apply only to those conditions referred to in Clause 42(10)(c), the purpose behind the amendment is, we think, entirely right. One of the principles of good regulation which we discussed in relation to Clause 3 is proportionality, and the proportionate approach of the regulator should be to apply ex ante regulation only where necessary. If competition law will do the trick, there should be no need to regulate. Furthermore, the amendment is entirely consistent with the framework directive which states in Recital 27:
	"It is essential that ex ante regulatory obligations should only be imposed where there is not effective competition . . . and where national and community competition law remedies are not sufficient to address the problem".
	In the light of the other obligations on Ofcom, it may be said that this amendment is not strictly necessary, but we believe it is right in principle and look forward to what the Minister will say in response.
	The effect of Amendments Nos. 104 and 127 is to prevent Ofcom from making a market power determination where Ofcom has determined that the identified market is effectively competitive. That seems to us to be right. If the relevant market is effectively competitive, there is no need for Ofcom to interfere and it should not make a market power determination. As with Amendment No. 95, Amendment No. 104 makes explicit the obligation on regulators contained in the framework directive not to interfere when a market is effectively competitive.

Lord McIntosh of Haringey: I, too, worked on the Enterprise Bill, and I am certainly enthusiastic about the idea of a general competition law applying, with sectoral law applying only when necessary. The problem is that we are now in Part 2. I shall bore the House by saying over and over again that Part 2 implements a number of European directives. Clause 42, to which Amendment No. 95 refers, implements article 6.1 and part A of the annexe of the authorisation directive and articles 4.1 and 4.3 of the access directive. Clauses 75 and 76 implement articles 14 and 15 of the framework directive. Clause 91 implements article 10 of the authorisation directive.
	It would be lovely if general competition law could deal with all the matters under debate, but we have not yet reached that position in the European electronic communications network and services market. Progress across Europe varies, which is why we have supported the directives and why we are transposing them into United Kingdom law.
	I recognise that Amendment No. 95 follows recommendation 74 of the Joint Committee report. As we said in the government response, we certainly understand the Joint Committee's concern that sectoral obligations should be confined to situations where normal competition legislation is not sufficiently effective for the special circumstances of this market. However, we believe that the Joint Committee's concerns are adequately dealt with in the way in which conditions are set, especially in the requirements on the regulator before he sets any conditions.
	The regulator can set conditions only where they are really needed and appropriate, and all activities of Ofcom are subject to provisions of Clause 3(3)(b). They must be transparent, accountable, proportionate, consistent and targeted only at cases in which action is needed. That is an adequate safeguard on the way in which Ofcom sets conditions, and makes Amendment No. 95 unnecessary.
	Amendment No. 104 would add further requirements on Ofcom when considering the setting of significant market power conditions. We consider that to be unnecessary, too. As we promised in responding to the Joint Committee's recommendation 63, we considered again whether the Bill could be improved to provide that significant market power conditions were set only when there was no effective competition. The way in which we have drafted Clauses 75 and 76 give the effect that the Joint Committee required.
	Significant market power conditions can be set only when someone has a position that amounts to dominance in the market concerned. That is set out in Clause 75(2), which refers to provisions of the framework directive to ensure that our interpretation of "dominance" is consistent with the interpretation across Europe. It is obvious that, if we have regulations consistent with European legislation, quite apart from the fact that we are obliged to introduce them, it is enormously to the benefit of the broadcasting and telecommunications industry that the same conditions should apply throughout Europe. If someone has "dominance", in our view and in the view of European Commission there is manifestly a lack of effective competition. In those circumstances, the regulator should be able to decide what ex ante conditions it is appropriate to set. Therefore, I do not believe Amendment No. 104 is necessary, and it follows that Amendment No. 127, which provides definitions, is unnecessary.
	I see the argument in favour of Amendment No. 117. It is a good thing to have consistency with other parts of the Bill, although it has not worried us in the past. We are prepared to accept that amendment, if that is the wish of the House.

Lord McNally: I do not know whether to do a lap of honour. We understand that there are constraints. It is worth emphasising that the Joint Committee was not simply a nanny and a meddler. It did not simply add on responsibilities, as the noble Lord, Lord Peyton, seemed to suggest. We accepted the argument that the communication industries would benefit from the type of rigorous competition established by the Enterprise and Competition Acts. I quoted Don Cruickshank's feeling that this country now has some extremely good competition machinery. Consequently, and reverting to the previous debate, we want that machinery to have the necessary resources to make the provisions bite.
	The Minister has given a most welcome response. Do we get the concession now? When we reach that part of the Bill, do we all say, "Agree"?

Lord McIntosh of Haringey: Yes.

Lord McNally: That is excellent. Thank you very much. I beg leave to withdraw the amendment and await the win.

Amendment, by leave, withdrawn.
	Clause 42 agreed to.
	Clauses 43 to 60 agreed to.
	Clause 62 [Obligations to be secured by universal service conditions]:

Baroness Gibson of Market Rasen: moved Amendment No. 95A:
	Page 64, line 23, at end insert "; and
	"(f) to secure the availability throughout the United Kingdom of affordable access to services of ever-greater bandwidth""

Baroness Gibson of Market Rasen: Amendment No. 95A asks Ofcom to ensure that broadband services are included within the definition of what constitutes high-speed services. That will both hasten the design and delivery of broadband services and assist the Government to achieve their aim of the UK being the most extensive and competitive broadband market in the G7 by 2005. For the UK that means a high-tech infrastructure that will enable worthwhile jobs to be located anywhere in the country, and it means the ability to attract international investment and to compete effectively with other modern economies.
	Overall, the problem is not predominantly one of supply. Most of the population of the UK now have access to a broadband service. Nevertheless, many rural users are prevented from accessing the technology because they live too far from their local exchange or their exchange has not been upgraded, or because the range of alternative access technologies are not available or are directed to the non-residential market.
	There are a number of matters on which the Government need to take action. They need to show potential users the practical benefits of broadband through pilots and demonstration and showcase projects. The Government should publicise the benefits of broadband through major education and awareness programmes. They should take the lead in creating demand through the public sector by co-ordinating the response of public sector authorities at the local level, such as councils and schools, and by using the public sector, through the post office and library, as focal points for the delivery of broadband services.
	Ofcom, of course, has the primary role in boosting take-up by providing a definition of universal service—the mechanism by which everyone has the right to receive certain communications service regardless of where they live, at a price they can afford, which encompasses the high-speed delivery of those services.
	Such is the success of broadband where it is available that no one accessing broadband will return to the narrow-band dial-up of yesterday. The services available through and generated by broadband delivery will become as essential to residential homes as the telephone and the power supply. Above all, a universal access requirement will ensure that we do not create a broadband barrier to go alongside the digital divide that already exists and that broadband instead becomes the means of overcoming that divide. I beg to move.

Baroness Turner of Camden: I rise to support my noble friend's amendment. As my noble friend Lord Lea indicated earlier, we had a meeting prior to this Bill with the unions involved in the industry. It is quite clear from those exchanges that the unions representing employees are very keen on broadband.
	I have a letter from the Communication Workers Union that indicates that the union has,
	"continually pressed for the obligation on government to guarantee the universal availability of affordable technology to be included within OFCOM's remit. Lack of leadership from government on the issue of providing broadband has led to the current slow and patchy availability across the country. This will result in a technological divide meaning that those on lower incomes or in rural locations will not be able to benefit from the new technology".
	Clearly there is an important social message here. We want the new technologies to be universally available. It seems to us—hence our amendment—that this can best be achieved if it is made a responsibility of Ofcom and included in the Ofcom obligations. I support the amendment.

Lord Lucas: I am delighted to join the two noble Baronesses opposite in supporting the amendment. I am a regular user of broadband. I rely on it for my business. It is one of the reasons I have to live in London. If I were to move outside London, broadband would not be available to me. In the particular place where I might go to live in the country there would be difficulties in terms of getting broadband. No one is trying to make it happen.
	The only opportunity to try to do something about the lack of availability of broadband in a small local exchange is to sign up on the relevant website. It is extremely difficult to get a campaign going among the users of that exchange. The cost of making an exchange broadband capable is a matter of a few thousand pounds. Some £10,000 or £15,000 would be sufficient for almost any rural exchange. If you can get together the people locally who would need the service and benefit from it and organise them to help BT subsidise the cost of that service, it can be done. But BT is not facing in that direction and does not offer that as an option. It is difficult to get hold of anyone at BT to talk about it.

Lord Avebury: I am most grateful to the noble Lord for giving way. Is the noble Lord aware that the sign-up campaign which he mentioned has worked extremely well in some areas, for example, in North Walsham where people got together privately and persuaded enough users to sign on at the website? They have now just achieved the breakthrough number which allows them to be connected to broadband. That will happen in July.

Lord Lucas: It can be done if there is sufficient impetus locally and someone is prepared to devote time to the matter. But the process ought to be assisted by the authorities. It is an absolutely vital part of the regeneration of the countryside that it should be possible for technologically aware businesses to be located there. To have such a process pushed and supported by BT and Ofcom would be much more satisfactory than having a situation where in certain parts of the countryside there happens to be someone with the time, initiative and knowledge to make it all happen. Ofcom and BT between them could make the whole process happen much faster.
	The Government could be helpful too—in areas which are technologically difficult from the point of view of ADSL along fixed copper cables—in opening up the radio spectrum. They have not allowed BT to proceed with experiments with wave bands which would allow a reasonable coverage. You can get radio systems where the coverage is quite short. However, something which would stretch 20 kilometres or so and could be used as a wide area network happens to be occupied mostly by bits of the Government that they do not want to talk about. They do not seem inclined to let it go. But it is essential that the Government have an imperative to make broadband available in all parts of the country where it is commercially sensible to do so and that the Government are behind it and that the momentum of government is behind it. Without that, large parts of the countryside will become inoperable from the point of view of running a business there. That is not a sensible basis for government policy. Therefore, I entirely support the two noble Baronesses opposite.

Lord McNally: I want to support the amendment briefly. It has emerged in a number of areas, including disability, that we are within touching distance of real revolutions. In the case of broadband, there could be a gap between what hard-headed and hard-nosed businessmen will do, looking at shareholder value or some other priority, and the broader national interest.
	Much of the evidence that we received showed that the opportunities that the rollout of broadband offers—it is often in the rhetoric of the Prime Minister and other Ministers—need a push from the Government. However, if there is a push from government, there will be an enormous beneficial impact on the rural economy and for transport. A new and entirely beneficial avenue for development in such areas is opened up. It is very exciting.
	Things seem constantly beyond our grasp, however. One has seen so often in other areas that there is the technology and the national demand, but there is insufficient government initiative to build the bridge between them. Therefore, I welcome the amendment, too.

Baroness Buscombe: We very much support the development of broadband, but we had this debate some days ago, quite fully.

Lord McIntosh of Haringey: We did indeed. I thought that I had made the Government's support for broadband clear when I responded to the amendments tabled by the noble Earl, Lord Northesk. I hope that I made it clear that the Government are committed to making broadband available across the country. There are plenty of examples of the initiatives that we are undertaking. The East England Development Agency ran the "Connecting Communities" scheme, with 102 applicants at the close of the application period on 30th April. Act Now in Cornwall is using EU structural funds, and 13 exchanges have been ADSL-enabled as a result. I am sure that there are many more, but I do not have time to recollect them.
	There is no doubt about our commitment to broadband. The trouble is that I have to address the amendment, and I have to do so in relation to Clause 61, which relates to must-carry obligations. The clause implements Article 6(1) and Condition 6 of Part A to the annex of the authorisation directive, and Article 31 of the universal service directive.
	For the time being, there are no Community obligations in relation to broadband. I wish there were. The Commission will review the requirements periodically, starting in 2005, but at the present stage of the development of communications services, there is no Community requirement, and we could not include a requirement relating to broadband in the Bill. That does not mean that we cannot do everything that we can ourselves, quite apart from the amendment, on the subject.
	I beg the pardon of Members of the Committee; the amendment is tabled to Clause 62.
	What would be added to the list of features for the universal service order is not of the same character as the others, which are the essential core characteristics of modern electronic communications systems. The Bill cannot specify the technological characteristics of future services in setting the requirements, and the legislation has to last for a number of years. Even if we were to include technological parameters, "ever-greater bandwidth" is not a single technological development that we might want to promote by specifying in statute.
	In any case, I am not sure that bandwidth is the right word to use in legislation. I tremble in the presence of the noble Lords, Lord Lucas and Lord Avebury, but surely a more precise definition than greater bandwidth is higher data rates. I suspect that there is general agreement that bandwidth will continue to increase, but it is possible that compression technologies will develop so that other technical characteristics, such as latency, may become more important. Our commitment to broadband at this time is undoubted. We shall continue to be committed to it. However, for obvious reasons, I cannot support the amendment.

Baroness Gibson of Market Rasen: I thank my noble friend Lady Turner and the noble Lords, Lord Lucas and Lord McNally, for supporting the amendment. I am also grateful to the noble Lord, Lord Avebury, for the information that he gave us about the sign-up campaign. I was pleased to hear that that is happening successfully in parts of the country.
	I thank my noble friend the Minister for his helpful reply. In view of it, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Avebury: moved Amendment No. 96:
	Page 64, line 24, leave out "may" and insert "shall"

Lord Avebury: The amendments are concerned with the pricing of services that must be provided under the universal service conditions. As I understand it, that currently means fixed narrow band telephony and associated services, public call boxes and directory inquiries, which are provided by BT and Kingston Communications in Hull. The Bill gives the Secretary of State the power to issue guidance in the universal service order about the pricing of those services. The Select Committee pointed out that that does not accurately reflect the division of responsibility between regulators and member states in articles 9 and 10 of the universal service directive. A few minutes ago, the noble Lord, Lord McIntosh, emphasised that Part 2 does nothing more than implement the four directives and that was the basis of the Bill. It is therefore important that the Bill should accurately reflect what is in the directives. The committee said unambiguously that in this case it does not do that. I noticed that the government response to the Select Committee report carefully omitted references to articles 9 and 10 of the universal service directive.
	Paragraph 156 of the select committee report recommended that,
	"the Secretary of State should be required to give guidance about relative pricing for the same service among different customers".
	That would be achieved by Amendments Nos. 96 and 97. The Select Committee further recommended that Ofcom should be obliged to publish proposals relating to pricing in respect of universal service conditions and that the Secretary of State should in effect have the final say because of the wide political and social significance of pricing for those services and the need for direct political accountability. Amendments Nos. 98 to 101 do that. We simply cannot accept the five-line dismissal of those proposals in the Government's response to the Select Committee without reference to the interpretation of the directive, which is the key to the amendments. I beg to move.

Baroness Buscombe: Under Clause 62, the Secretary of State is under an obligation to make what is called the universal service order, which sets out a number of matters which must be provided throughout the UK by universal service providers. The price for services is of course an important matter because the cost of providing a service in Cornwall, for example, may be very different from the cost of providing a service in London. It may therefore be appropriate for the universal service order to contain guidance about pricing, and Clause 62 provides for that. However, Amendment No. 97 makes it mandatory for the universal service order to contain guidance relating to the pricing of services. That is really a matter for the regulator, who is independent of government, and there seems to me to be no reason for it to be mandatory for the Government to seek to influence the regulator.
	However, the amendment requires the word "pricing" on its own to be left out, and that unduly restricts the Secretary of State's power. We should by all means give the Secretary of State power to include within the universal service order guidance about relative pricing. I am with the noble Lord on that point. He and I part company over whether or not the Secretary of State should have power to give guidance about pricing generally. We believe that that would be useful and the Secretary of State should have that power. However, it should not be mandatory for him to exercise it.
	The thrust of Amendments Nos. 98 to 101 is to give the Secretary of State power to modify any proposals made by Ofcom which relate to the pricing of certain services and functions. Clause 62 provides for the Secretary of State to make a universal service order which must deal with certain specific functions and services to be provided or made available or supplied throughout the UK.
	Clause 64(1) provides that Ofcom can set universal service conditions for securing compliance with the obligations set out in the universal service order. The effect of this amendment as regards pricing of the various services and functions is that Ofcom, instead of setting universal service conditions, must publish proposals which have then to be approved by the Secretary of State. The Secretary of State can then modify those proposals.
	That, we believe, seems to be wrong in principle. Ofcom is intended to be an independent regulator and these matters should be left to it and not subject to interference by the Government. Nor do I think it is a sensible use of the time of the Secretary of State or Ofcom. It involves an order being made by the Secretary of State, Ofcom then publishing proposals consistent with that order, and then the Secretary of State reconsidering those proposals. The Secretary of State is therefore involved at two stages.
	I would have thought it better for the Secretary of State to consult Ofcom at an early stage so the universal service order is quite clear as to what the Secretary of State requires. Clause 62(4) contains such a provision and we believe that that is a much better solution than the one proposed in the amendment.

Lord McIntosh of Haringey: First, I apologise for misplacing Amendment No. 95A, which led me to a number of errors. I said that it was in Clause 61. In fact, it is in Clause 62. I said that Clause 61 was about the must-carry obligations, which indeed it is, but Clause 62 is about the universal service obligation. I therefore misrepresented the European directives with which Clause 62, and therefore Amendment No. 95A, are concerned. Clauses 62 and 64 to 66 implement articles 3 to 7 and 9 to 11 and Part A of Annex 1 to the universal service directive. I apologise for that, but it cannot be put right in Hansard.
	I agree with much of what was said by the noble Baroness, Lady Buscombe. We said in response to the Joint Committee that we do not think Ministers should do more than offer general guidance on the pricing of the universal service. We envisage that by way of guidance on the pricing of universal service obligations—this, after all, implements the universal service order and we have published a draft of the guidance for consultation—charges for essential elements of universal service should be offered on the basis of geographically average prices. That addresses the point made by the noble Lord, Lord Avebury. However, beyond that, we believe that decisions should be left to Ofcom.
	We are deliberately setting the framework for dealing with the electronic communications sector over the coming years, setting up a high-powered regulator to deal with the detail in the manner prescribed in the Bill. We do not want to reserve all the details involved in the amendment to government. There is no need for government to take political decisions on the pricing of the universal service. It would not be desirable for the telecommunications industry and it would not be desirable for consumers.
	Clause 65 requires Ofcom to keep universal service tariffs under review. It provides that universal service conditions can require the use of a common tariff for the provision of network services, apparatus, associated facilities, directories and directory inquiry facilities set out in the universal service order. In cases specified by Ofcom, special tariffs may be required. I believe that these measures are sufficient to secure fair pricing for universal services under Ofcom and there is no need to resort to further intervention by Ministers.
	The noble Lord, Lord Avebury, said that the Bill does not accurately reflect the directive. We believe that it does, particularly in the difference in the obligation specified in articles 9.1 and 9.2 of the universal service directive. But I appreciate that he has raised a precise point and I would like to write to him to explain it in more detail.

Lord Avebury: It is a pity that the Government did not address the point properly in the reply that they made to the Joint Committee. It is clear in paragraph 156 of the committee's report that it did not believe that there is a mirroring in the Bill of the division of responsibility between NRAs and member states in Articles 9 and 10 of the Universal Service Directive. The Minister has said that he disagrees with that opinion. If he had given the reasoning for his conclusion to the Joint Committee, it might well have been accepted. I do not know.
	I shall have to discuss the matter with members of the Joint Committee, as I was not a serving member. I should particularly like to take the advice of the noble Lord, Lord Puttnam, before deciding whether this is a matter to which we should return on Report. In the mean time, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	[Amendment No. 97 not moved.]
	Clause 62 agreed to.
	Clause 63 agreed to.
	Clause 64 [Subject-matter of universal service conditions]:
	[Amendments Nos. 98 to 100 not moved.]
	Clause 64 agreed to.
	Clause 65 [Tariffs etc. for universal services]
	[Amendment No. 101 not moved.]

Lord Avebury: moved Amendment No. 102:
	Page 66, line 38, leave out subsections (3) and (4) and insert—
	"( ) Universal service conditions must secure that a designated undertaking, in providing facilities and services additional to those referred to in the universal service order, establishes terms and conditions in such a way that the customer is not obliged to pay for facilities or services which are not necessary or not required for the service requested by the customer."

Lord Avebury: As currently drafted, subsections (3) and (4) of this clause implement the Universal Service Directive in a way which, we say, "gold plates" the EU rules. The approach will adversely affect universal service providers in a way that we do not believe was intended by the directive.
	The universal service order, made by the Secretary of State under Clause 62, sets out the extent to which the things specified in subsection (2) of the clause must be made available and supplied throughout the United Kingdom, while under Clause 63 Ofcom has the power to designate universal service providers, who are persons to whom the order applies.
	Subsections (3) and (4) of Clause 65, which this amendment proposes to remove from the Bill, are intended to implement Article 10(1) of the EU's Universal Service Directive, though the Explanatory Notes do not actually say so. Article 10(1) requires that if designated undertakings—USPs under this Bill—provide additional services beyond those mandated by the USO, they must,
	"establish terms and conditions in such a way that the subscriber is not obliged to pay for facilities or services which are not necessary for the service requested".
	In the case of Kingston Communications and BT, the products and services provided under the USO include telephony services and calls, public payphones, and special services for low-income users. So the directive says, as we have it in Amendment No. 102, that if they provide services outside those specified in the USO they must not charge the customer for other facilities or services that are not necessary for the particular service requested.
	The directive says nothing about the charges made for services provided under the USO, but the Bill as drafted wrongly interprets Article 10(1) as meaning that customers of the basic services shall not be required to "subsidise" other services, meaning services provided outside the USO. This would mean that any normal profits generated from products supplied under the universal service obligation, such as telephone calls, cannot be invested in the start-up and development of new products and services.
	Telecommunications is a dynamic and rapidly developing industry with new service capabilities becoming available, such as broadband access—a subject that we have just discussed—which are of economic and social value to customers. It is perfectly normal for such new service introductions to be initially loss-making and, therefore, in effect subsidised by the profits generated by more mature services. If the ability to rely on some degree of internal cross-subsidy is removed, service innovation will be severely restricted and ultimately consumers will suffer.
	The prices of the products and services provided under the universal service order are already constrained by competitive forces or by direct controls by Oftel, providing the market and regulatory pressure that the directive intended. Both Kingston Communications and BT would be harmed by the current wording, but Kingston would be hit much harder because of its size. I beg to move.

Baroness Buscombe: Perhaps I may—

Lord McIntosh of Haringey: I do not want to pre-empt debate, but I could be helpful to the amendment, which might save time.
	We agree that the intention of Article 10(1) of the universal service directive appears to be that subscribers to any of the universal services mandated by the directive should not be required to pay for other facilities or services where those are not a necessary part of that service. Certainly, we think the drafting will achieve that but we recognise the concern that it might lead to more extensive regulatory interventions than are envisaged by the directive, which is "officialese" for what the noble Lord, Lord Avebury, called "gold plating".
	So, we are sympathetic to the intention of the directive. We should like to consider the point further. We shall undertake that the Government will consider bringing forward an amendment on Report on that point.

Lord Avebury: That is a most satisfactory answer. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	Clause 65 agreed to.
	Clauses 66 to 70 agreed to.
	Clause 71 [Specific types of access-related conditions]:

Lord Avebury: moved Amendment No. 102A:
	Page 71, line 42, at end insert "; and
	(c) that where the practices required by the code for electronic programme guides under section 304 in relation to the type of selection described in subsection (2A)(a)(ii) of that section require additional software or an additional facility to be provided in relation to the guide, that such facility or software be provided within a reasonable period of time, and that the terms as to price on which it is provided are set to entitle the recovery of the direct cost of making the facility or software available together with a reasonable return for the provider only."

Lord Avebury: This amendment refers to a very important problem, which I referred to at Second Reading. Up until now the BBC's programmes have been transmitted in encrypted form for users of set-top boxes but from 30th May onwards they will be in the clear. That means that digital satellite viewers in the UK will be able to receive the eight BBC channels without the use of a Sky viewing card, through any make of digital satellite receiver, but current and future Sky subscribers will still be able to receive all the BBC's services.
	The BBC states that it will save an estimated £85 million over the next five years because it will no longer need BSkyB's conditional access system. Nearly half of those savings, £40 million, will be used to improve access to the BBC's national services in Scotland, Wales and Northern Ireland plus, for the first time, the 15 regional variations of BBC1 in England will be available on satellite and will be listed on the Sky electronic programme guide. That means that viewers will be able to choose the regional or national version of the BBC that they prefer, irrespective of where they may be living.
	The BBC has been able to do that because its conditional access contract with Sky expires at the end of May and because the signals which it now proposes to transmit are being tightly focused via the Astra 2D satellite, which eliminates the rights problems that would have arisen with the larger footprint of the old transmissions.
	In order to give the viewers the ability to select the version of BBC1 and BBC2 of their choice, the EPG software needs to be modified and the BBC obviously hopes that that can be done as soon as the new arrangements begin and at a reasonable cost. Sky, on the other hand, is understandably miffed at the prospect of losing a substantial income over the next five years and would like to make up some of the difference via its monopoly on the EPG.
	The software is a proprietary system, but the BBC knows enough about the way it works to be able to say that the modification it needs is fairly simple. It would be prepared to pay a fair price to Sky for the programming work, including a fair profit margin, and that is what the amendment proposes. In the absence of such a provision, Sky could hold the BBC to ransom. It has already said that it is unwilling to do what the BBC asks when there are other commercial opportunities that it could pursue with the limited programming capacity at its disposal.
	It would be difficult to overstate the importance of the EPG. It is a combined Radio Times and channel selector. If an agreement is not reached between the BBC and Sky, it is the viewers who will suffer. This is par excellence a case where the regulator should have the power to set conditions so as to ensure that the customer of a monopoly is not held to ransom. I beg to move.

Baroness Howe of Idlicote: I support the amendment. I hope it will provide the following benefits. First, that it will underline Parliament's support for the availability of high-quality public service programming on the digital satellite platform, including local and regional services such as news and current affairs; secondly, that it will enable television viewers to select easily the regional services of their choice; and, thirdly, that it will ensure that satellite operators are guaranteed a fair price for making any required software upgrades.
	In the Broadcasting Act 1996, Parliament made its intention quite clear regarding the access to public service channels broadcast on digital platforms. By defining the principles of "fair access" and "due prominence", it ensured that public service channels could be easily located by viewers using electronic programme guides.
	However, as we all know, further advances in technology—apart from providing for a proliferation in the total number of channels available—have now provided, as we have heard, the opportunity to further extend viewer choice in the area of regional services. I agree with the noble Lord, Lord Avebury, that the amendment is important for ensuring that digital satellite viewers have the maximum choice over which public service regional services they want to watch on the top slots of the electronic programme guide.
	As we have heard, following its recent decision to broadcast unencrypted on Sky's digital platform, the BBC has announced that it intends to place its regional services on Sky's EPG. It also wants viewers to select which regional service they want to watch on slots 101 and 102.
	For the vast majority of viewers the choice of regional programming will no doubt be determined by where they live. However, there will now be a choice for them to take the decision for themselves. A Scot, for example, working in London may wish to keep in touch with his or her local news north of the Border. Similarly, a Londoner who resides—no doubt because of his job—in the West Country may relish the opportunity to keep up-to-date with local news in the capital.
	To facilitate this consumer choice, the BBC has requested that Sky make the required simple software upgrade to its EPG system. I believe that both ITV and Channel 4 support the amendment because in the future they too may possibly want to offer a similar choice to viewers.
	It is important that Parliament gives some guidance in the Bill as to how the cost of these potential software upgrades are to be regulated and the speed with which they are to be implemented. Naturally, platform operators are entitled to recover in full the costs they incur in carrying out such upgrades and—I may say—to receive a reasonable profit margin for so doing. There must be no question of public service broadcasters getting something for nothing.
	Similarly, attempts to provide greater consumer choice must not be hindered by interminable disputes over the cost and timing of providing such upgrades. In debates that have taken place outside the House, we have had examples of some of those. So, by addressing the issues of cost and timing, the hope is that this amendment will not only protect the interests of the platform operators—which is perfectly legitimate—but that the public interest aspect will also be fully taken into account.

Lord Gordon of Strathblane: I put my name to the amendment because it came closest to what I was looking for in the Bill as regards either conditional access or electronic programme guides. I do not regard the amendment as being fully satisfactory. I hope that on Report the Government will return with an amendment couched in even more general terms, which simply gives power to Ofcom to intervene proactively to fix tariffs.
	I do not sign up in full either to the position of the BBC or to the position of Sky. Both are misrepresenting each other like nobody's business. But what I am clear about is the fact that we have a monopoly supplier and we need proper regulation in the public interest as to how it operates.
	I leave it to the Government to do that. Also, I fully recognise that the nature of the game is changing. Incidentally, perhaps I may correct the noble Lord, Lord Avebury. I do not think that the BBC is going to switch on 30th May precisely because it is involved in negotiations with Sky. To be frank, much fine verbiage about this matter has been exchanged, but the two organisations are playing a poker game to decide how much to pay. We have two very good poker players in the BBC and Sky. I am simply concerned that the public interest could be lost unless Ofcom is given the power to intervene and say, "We are not leaving you two to go on like this for another year. This is what will happen." I hope the Government will come forward with something on Report to address that.

Lord Brooke of Sutton Mandeville: I echo what has been said by the noble Lord, Lord Gordon. When I was in the private sector, I recall a dispute between our world-wide auditors and our German subsidiary. It was perfectly clear that there had been a total breakdown in communication between them. I intervened personally because it was obvious that, while intelligent people were corresponding on both sides, in fact they were paying no attention to the letters they were receiving from the other side. That appears very much on a par with what has been said by the noble Lord, Lord Gordon, about the misrepresentation of the parties concerned.
	This is an important issue. While I do not seek remotely to put myself in the position of Ofcom in regulating the dispute in Germany many years ago, I know that it is important that the power should exist so that good sense can prevail.

Lord Lipsey: We should not think that Ministers are granted a monopoly on opposing amendments. I am afraid that I oppose this amendment, although I do not oppose some of those appearing later on the Marshalled List such as Amendment No. 250A whereby the BBC seeks to address the same problem.
	We have discussed the issue before. My noble friend Lord Gordon and the noble Lord, Lord Brooke, have described the problem well. We have here the BBC trying to get Sky to provide it with a lot for a little, and Sky trying to get a lot for providing a little; it is a stand-off situation. We experienced much the same last year when the BBC was trying to persuade Sky to carry all its services for practically nothing. Of course the correct thing ultimately took place. After looking at all the facts, Oftel gave a considered ruling and determined what the appropriate price would be—and that was the end of it.
	In this case, there are two substantial matters of fact on which the parties disagree. The first is whether the software upgrade is as simple as the BBC insists. Or is it not? I do not know whether the noble Baroness, Lady Howe, and the noble Lord, Lord Avebury, have examined the software in detail and are able to answer that question for the Committee. Personally, I have nothing like the technical knowledge to do so. Secondly, what kind of pricing regime would be fair? Simply to say "cost/plus" is not sufficient. Is the BBC to borrow Sky's technicians and decide what is the appropriate cost for such a technician and then decide what is the appropriate plus? Is it to be decided by Parliament without examination by means of this kind of amendment? That is not the approach we need.
	What has to take place and what is the sensible approach is for the two parties to enter into negotiations. If they cannot agree, then it will go to Ofcom to resolve. Indeed, some of the later amendments will make clear the kind of conditions under which Ofcom should resolve such a dispute. Furthermore, let us not doubt that Ofcom has the power to resolve it. It would be wrong for this Committee to reach a technical decision on the technology or a decision on the appropriate pricing regime by supporting this amendment. I hope that we shall find a way of helping to resolve the situation, but this amendment ain't it.

Viscount Astor: Existing legislation already gives guarantees on both conditional access and EPGs that there should be fair, reasonable and non-discriminatory terms. The regulators already have that power and Ofcom will have it as well. I hope the Minister will be able to confirm that. I believe that the regulator will have the tools required, as it were, if it is necessary to intervene in this dispute.
	While I am in one sense sympathetic to the BBC case, I cannot agree with this amendment. However, later amendments concerning due prominence, mentioned by the noble Lord, Lord Lipsey, may have greater validity. Have the Government looked at the arguments on either side? Most of us do not have the technical knowledge to give us any idea of whether the satellite footprint of the proposal will cover Ireland and, therefore, affect the RTE service, preventing the BBC, if it broadcasts in the clear, from having slots one or two. Have the Government asked the ITC for its advice?
	In the same way, as the noble Lord, Lord Lipsey, says, I do not think that any of us have any idea about software upgrades. All I know is that, usually, when someone upgrades my software, it never works as well afterwards—definitely not for the first month. It is wildly optimistic of the BBC to say that it knows about someone else's software and that it can be upgraded easily. The important point is that the regulator seems to have the necessary power. I question whether we should insert in the Bill such an amendment, which seems to go too far.

Lord McNally: I do not share the complacency of either the noble Lord, Lord Lipsey, or the noble Viscount, Lord Astor, about the present powers of the regulator and the powers that the Bill gives Ofcom. I see real problems. It is difficult to tell whether the amendment addresses it properly, as we are only at Committee stage. By the time the Bill is enacted, I hope that we have proper powers. In my experience over the years, when great corporations have the choice between trying to score short-term advantages off one another or acting in the public interest, all too often they go for short-term, petty victories. In Tony Ball and Greg Dyke we are not dealing with men who have gone through the Lucie Clayton charm school. I fear that we are in for some macho corporate mud-wrestling between the BBC and Sky. But it will be the consumer who ends up dirty and dishevelled.
	Of course we do not know all the technology involved. The Government and Ofcom need to obtain proper advice. As the noble Lord, Lord Gordon, said, I have been heavily lobbied by both Sky and the BBC. I have told both broadcasters that if they keep on playing for a 100 per cent victory they will irritate Parliament and end up with legislation that they do not like at all. They will deserve what they get. The noble Viscount, Lord Astor, says that we should let the broadcasters get on with negotiating, and that we have provision in the Bill. That is a recipe for chaos and dissatisfied consumers five years down the road. We may not have got it perfect this time, but we are only in Committee stage—

Viscount Astor: Does the noble Lord agree that the current regulators and Ofcom have the powers to regulate both conditional access and EPG services?

Lord McNally: Having looked at the industry over the past few years, one of my concerns is just how long. It is not a question of the broad powers written into the Bill, but how effective the regulation will be. I am attracted by the fact that the amendment deals with a specific problem that needs to be addressed. I do not want it to be caught up with some general powers that the lawyers will take away year after year. When it is claimed that that cannot happen, I say that they have already done it. Part of my concern is that previous practice in this area involving disputes has involved long "lawyerfests" rather than quick resolution in favour of the consumer; and that is what we should be trying to achieve in this Bill.

Lord Lipsey: The noble Lord says with great wisdom that we should not go 100 per cent BBC or 100 per cent Sky. Why, then, is he putting his weight behind an amendment that is, in drafting and content, 100 per cent BBC? Why does he not suggest an amendment that balances the two?

Lord McNally: I did not say whether I would go 100 per cent BBC. I have not come to a decision yet. What I am saying and what I have made clear to Sky is that, because of a chapter of historical accidents, it has ended up with a monopoly. That does not mean that Sky should be on the gravy train, able to milk public broadcasters for whatever it can get for as long as it can. If it tries to do that, Parliament will intervene. That is the friendly warning that I gave Sky and to Sky friends such as the noble Lord, Lord Lipsey. I see that the noble Lord is unprovokable—

Lord Lipsey: The noble Lord knows me better than that. I am neither on Sky's side nor the BBC's side. I said earlier that I supported some of the later BBC amendments, as does the noble Viscount, Lord Astor. It is the noble Lord, Lord McNally, who is on one side. This is the BBC's amendment and gives the BBC 100 per cent of what it wants, which is why it would be so unwise to accept it.

Lord McNally: I shall finish by reminding the noble Lord, Lord Lipsey, of some advice I received from Ian Mikardo MP many years ago. He said, "Tom, if you stand in the middle of the road, you get hit by the traffic going both ways".

Baroness O'Cathain: I intervene briefly in the debate, although I have a terrible sense of deja-vu, having been knocked about on the issue in debates on the 1996 Broadcasting Bill.
	In all our discussions about the BBC and Sky and how the two are locking horns, we should not forget about the customer or consumer. I support the amendment because I want to make sure that viewers have easy access to public service channels. We should not forget that we are talking about public service broadcasting, and consumers should have easy access to it. I am sure that we will have a long debate on this again on Report.

Baroness Buscombe: It would be remiss of me not to say something on behalf on Her Majesty's Loyal Opposition on such an emotive subject.
	Noble Lords in all parts of the Committee have made clear how tough the situation is. We have all been strenuously lobbied by both sides. Some of us were fortunate enough to attend a debate on these matters chaired by the noble Baroness, Lady Howe of Idlicote. As a result of that debate, having heard all sides of the arguments made by the BBC, Sky and others from the platform, I became convinced that the issue should not be subject to primary legislation.
	That said, I agree with Carolyn Fairbairn of the BBC that, if we continue to believe in the value of public service broadcasting, we must ensure that public service broadcasting channels can be easily found. That is not the subject of the amendment; it is a subject for a later debate. The pricing and technological issues are difficult, and most of us would agree that we do not necessarily understand them entirely, having been given different stories by the BBC and Sky. Surely, however, the reason why the Bill is before us is to set up the regulator, Ofcom, and to give it powers to deal with such issues. Those issues will arise, and they are important, but we should not try to confront them in primary legislation.
	I must defend the noble Lord, Lord Lipsey, and my noble friend Lord Astor. Their contributions did not show complacency about what the Bill can provide for or the powers that will be given to Ofcom to deal with such issues. We are all waiting to hear the Government's response on the issue.

Baroness Blackstone: I begin by saying that I am not taking sides on this issue. I think that both Mr Greg Dyke and Mr Tony Ball are utterly charming. It may not be the Lucie Clayton school of charm but, in my view, they are both delightful gentlemen to spend time with.

Lord McNally: She has just got herself half way to the next "I'm A Celebrity Get Me Out Of Here".

Baroness Blackstone: No thanks! I strongly identify with what the noble Baroness, Lady Buscombe, has just said. This is a BBC-inspired amendment. It concerns a particular dispute which is taking place and I am not sure that we should be amending primary legislation to deal with a dispute of this type in this way. I agree with quite a lot of what my noble friend Lord Lipsey said and, indeed, what the noble Viscount, Lord Astor, said. There are already provisions which allow the regulator and the broadcaster the platform to sort out such a dispute.
	However, my main reasons for rejecting this amendment are technical. Amendment No. 102A seeks to amend Clause 71. As noble Lords will see, it relates directly to the new subsection (2A)(a)(ii) that Amendment No. 250A would introduce to Clause 304. This provision would have the effect of giving viewers the ability to manipulate their EPGs and, where the implementation of this necessitated the provision of a particular facility or piece of software, Amendment No. 102A would allow Ofcom to set conditions on EPG providers to ensure that they supplied the facility or software concerned within a reasonable period of time and at no more than a modest profit.
	More fundamentally, I must underline the fact that Clause 71(2) has been drafted specifically to implement Article 5(1)(b) of the access directive. The precise reference—which I am sure that the noble Lord, Lord Avebury, will ask for if I do not give it—is Directive 2002/19/EC dated 7th March on access to, and interconnection of, electronic communications networks and associated facilities. It is related solely to the access-related conditions that national regulatory bodies may impose and provides that Ofcom is able to impose obligations on operators to provide access to EPGs and application programme interfaces on fair, reasonable and non-discriminatory terms.
	Clause 71(2) already transposes article 5(1)(b) in full and to alter it in the way suggested would take it beyond the bounds of what is permitted by that provision. We are therefore debarred from doing what has been proposed. For technical reasons we have to reject this amendment, but I think the other reasons for rejecting this amendment were well expressed by the noble Baroness, Lady Buscombe.

Lord Avebury: I always think that governments must have very weak cases if they have to fall back on technical arguments for rejecting an amendment. It was a pity that the noble Baroness did not address the real problem. We are coming to the end of May, when the BBC is going free-to-air and when the question of how viewers will access programmes is of crucial importance. I think that there has been a certain amount of complacency in certain quarters—though not all—and I am grateful to those noble Lords and Baronesses who have supported the amendment, particularly the noble Baroness, Lady Howe, whose comments I greatly welcomed.
	I do not think that the Government are sufficiently seized of the urgency of this problem. Whatever the noble Lord, Lord Gordon of Strathblane, may say, it is the intention of the BBC to go free-to-air at the end of this month. The question of what happens to the EPG and how consumers are to obtain the BBC1 and BBC2 of their choice is urgent. It is no good saying that somewhere—

Viscount Astor: Is the noble Lord aware that the only reason that the issue arises is not because the BBC wishes to broadcast "in the clear" but it wishes to have regional services available? If it puts off the introduction of the access to regional services, the main BBC programmes can be seen broadcast "in the clear" without any problem after the end of May and for as long as anyone wants. Adding the regional element is the only difference.

Lord Avebury: Being able to access the BBC1 and BBC2 of your choice is of critical importance. As the noble Baroness, Lady O'Cathain, said, you are asking for consumers to be able to look at the programmes of their choice. Everyone agrees that that is a most important element of the new system being developed by the BBC, which is costing £40 million—or half of the savings it is making by not having to go through the encryption services of BSkyB.

Lord Gordon of Strathblane: What do we mean when we refer to the "main BBC service"? The one out of London? That is actually a regional service for London. Given the devolved situation that we have in Scotland, if you broadcast something that does not cover Scottish affairs, you are positively misleading the population. You could refer to a Minister for Education, a Minister for Housing and a Minister for Health who have no authority in Scotland.
	Not only that, contempt of court regulations are different. To my certain knowledge, when my successor was at Radio 4 he was fined £10,000 because his radio station broadcast a Scotland Yard press release which was okay south of the Border but not okay in Scotland. There is no such thing as a mainstream BBC service. The service is regionalised throughout the country, much to its credit.

Lord Avebury: I am not quite sure what the noble Lord, Lord Gordon of Strathblane, is trying to say. I think he, as a Scot in London, was underlining the importance of being able to see the Scottish service. Equally, if an Englishman in Edinburgh wants to see a regional English service, he should be able to do so.
	If we do not tackle the problem now, after 30th May we will have a situation where all the money being spent by the BBC—the £40 million—will be wasted from the consumer's point of view because he or she will not get the benefit of the regional services on offer.
	The software referred to by the noble Lord, Lord Lipsey, and the noble Viscount, Lord Astor—who do not believe the BBC's contention that this a fairly modest alteration in the programme—does not matter. We are not putting a price on it. We are saying that the BBC should have to pay whatever the software alteration costs may be, plus a suitable profit margin. Whether that is £100,000 or £1 million is neither here nor there if we do not give Ofcom the powers contained in the amendment.
	There is no alternative. The Minister did not refer to another solution. She merely said that we would not do well to pass primary legislation to deal with a dispute between two major corporations; that we should allow the regulators to sort it out. If she is of that opinion, she is condemning the industry to months, or perhaps even longer, of uncertainty. She is saying that consumers will not be able to access the important new services that would be available to them if the dispute was sorted out.
	We shall not solve the issue on the Floor of the House today. I shall return to it at a later stage in the Bill. In the mean time, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	Clause 71 agreed to.
	Clauses 72 to 75 agreed to.
	Clause 76 [Market power determinations]:
	[Amendments Nos. 103 and 104 not moved.]
	Clause 76 agreed to.
	Clauses 77 to 90 agreed to.

Lord Evans of Temple Guiting: I beg to move that the House do now resume.

Moved accordingly, and, on Question, Motion agreed to.
	House resumed.
	House adjourned at twenty minutes past seven o'clock.